International Law Studies—Volume 30

International Law Situations

The thoughts and opinions expressed are those of the authors and not necessarily of the U.S. Government,
the U.S. Department of the Navy or the Naval War College.
 SITUATION I

LONDON NAVAL TREATY, ARTICLE 22, AND

SUBMARINES
It is granted that the I...~ondon naval treaty 1 has been
ratified by the signatories and that article 22 has been
assented to by all other States. Subsequently there is
war between states X and Y. Other states are neutral.
(a) The Star, a merchant vessel owned by a citizen
o:f and flying the flag o:f state Y and having its decks
stiffened :for the mounting o:f 6-inch guns, receives a
summons :from submarine No. 5 o:f state X to lie to, but
the Star continues on its course. Submarine No. 5
communicates with submarine No. 6, which is on the
course the Star is taking, to sink the Starr. Submarine
No. 6 without coming to the surface sinks the Star.
A:fter the war claims are made against state X on the
ground that the action o:f the submarines was illegal.
'Vhat should be the decision, and why~
(b) Would the discovery by submarine o:f state X
that on an enemy merchant vessel equipped in a manner
similar to the Star 6-inch guns are mounted and pointed
toward the submarine be sufficient to justify sinking of
the merchant vessel even i:f they are not yet fired~
(c) May the submarine order a merchant vessel to ac-
company it under penalty o:f being sunk~

SOLUTION

(a) Under the conditions, the action o:f submarine No.

5 in summoning the Star to lie to is legal and submarine
No.5 may, in case o:f persistent re:fusal, use force as would
1 See the London Naval Treaty of 1930, Appendix, p. 137.
1
2 LONDON NAVAL T'REATY, ART. 22, AND SUBl\fARINES

a surface vessel. 'l"he action o£ submarine No. 6 in sink-

ing the Starr is illegal because not in accord with article
22 of the Lond.on naval treaty.
(b) 1"'he subn1arine o£ state X would be justified in
firing upon an enemy 'n1erchant vessel whose decks have
been strengthened £or 1nounting 6-inch guns "\Yhen the
guns are 1nounted and pointed at the submarine.
( o) A subn1arine n1ay order' a n1erchant vessel to ac-
company it to port under penalty o£ being sunk.
NOTES

Londo-n LVaval 1lreaty, 1930.-The I_Jonclon naxal treaty

of 1930 specifically states its purpose to carry forward
the ''ork begun at the \Vashington N a Yal Conference of
1921-22. At the \iV ashington conference a treaty relat-
ing to the use of subn1arines and noxious gases in war-
fare 'vas dra·wn up but 'vas never ratified by all the
powers. Article 22 of the London naval treaty of 1930
'vas therefore the carrying :for,vard o£ the regulation of
the use of submarines.
In the discussion o£ the subn1arine at the London
Naval Conference the representative of Great Britain,
follo,ved by the representatives o£ the British Connnon-
W'ealth of Nations, favored the abolition of the sub-
n1arrne.
The follo,ving state1nents "'ere n1acle by ~Ir. Stimson
of the American delegation:
The American delegation at this conference is in favor of the
abolition of the subn1arine. At the 'Yashington conference in
1921-2.2 the American delegation accepted the vie\V of their naval
advisers that the United States needed a submarine force. They
were therefore, at that tiine, opposed to its abolition. Such a
stand was based upon purely naval strategy \Vithout reference
to hun1anitarian considerations, because the conference agreed
that the submarine should not be used aganist commerce except
under the same obligations relative to the safety of passengers
and crew, which applied to surface craft * * *.
The essential objection to the submarine is that it is a weapon
particularly susceptible to abuse; that it is susceptible of use
 OFl'ICIAL ATTITUDE, 19 3 0 3
against 1nerchant ships in a 'vay which violates alike the old
and well-established laws of war and the dictates of humanity..
The use nul.de of the subn1arine revolted the conscience of the
world, and the threat of its unrestricted use against merchant
ships was what finally determined the entry of 1ny own country
into the conflict. In the light of our experience it seems clear
that in any future war those '\Yho mnploy the submarine will be-
under strong te1npta tion, perhaps irresistible teinptation, to use-
it in the way which is 1nost effective for immediate purposes,
regardless of future consequences. These considerations con-
vince us that technical arguments should be set aside in order
that the submarine may henceforth be abolished.
"\\-.,.e have cmne to the conclusion that our problem is whether,
in this dn;\· and age and after the experiences of the last war, the
nations at this conference are justified in continuing to build
these instnnnents of warfare, thereby assuming responsibility
for the risk of repeating, in an~· possible future wars, the in-
humane actiYities which have been condemned by the verdict
of history. (Proceedings, London Naval Conference, 1930, p. 82.:
et seq.)
l\ir. I~eygues speaking for France said:
The submarine has often been n1entioned as a machine without
its like in naval warfare. That saying can hardly be main--
tained either as a Inatter of principle or as a 1natter of fact.
Con1pared '"ith the other ships, what are the distinctive features
of the subn1arine? To the gun and torpedo, joined together, it
adds submersion.
The latter discovery is never more surprising, nor in itself
more unlawful, than was at the tin1e of its first appearance the
stea1nship as opr1osed to the sailing vessel.
To ev~ry in1provement of offensive weapons corresponds a
progress in defensive weapon~. To the gun a.nd the torpe(lo were
opposed the armor, bulkheads, and the bulge. Against the sur-
prise attacks of the sub1narine! navies already protect theinselves
by nets, Inines, and the listening detectors.
The wireless has indeed multiplied the military efficiency of
the sub1narine. But it 1nust be some day or other outdone by a
new appliance which will not only reduce its offensive or defen-
sive powers to the level of older weapons but will show off its
relative weakness.
Only the total abolition of war fleets n1ight put a stop to the
continual progress of technical evolution.
It has been Inailitained, on the other hand, that the submarine
could only be used against merchant ships. The history of the
recent war proves the contrary. ··· * *
4 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

We have yet to discuss the opinion that has been spread of the
submarine being a barbarous instrument of war. It owes such a
reputation to the use made of it in some quarters against mer-
chant ships, in violation of the principles of humanity which are
the foundation of international laws. But such violation is
ascribable to those who have used the submarine to that effect,
not to the subma.rine itself.
The use of the submarine against merchant ships is not neces-
sarily unlawful. Everything depends on the intention behind it.
There is no weapon which can not be used for criminal pur-
poses. * * *
Since then, the evolution of the submarine has made it still
more capable of carl'ying out extended operations while observing
the rules established for surfa.ce ships. If submarines can fulfill
the same duties, why should they not enjoy the same rights?
The logical conclusion is to treat alike, as far as both rights
and duties are concerned, the submarine and the surface ship,
and this is the conclusion to which the French Government has
come.
The French Government is of opinion that an unrestricted
submarine war against maritime trade should be outlawed. The
right of visit, search, and seizure should be exercised by sub-
m-arines under the rules, both present and future, to be observed
by surface ships. (Ibid., pp. 85, 87.)
Admiral Takara be, of the Japanese delegation, said:
The merits of a submarine are to be judged not by what it did
but by what it is. It is not a ruthless 'veapon to be condemned
in contradistinctiOI) to the surface craft. For that matter, what
"reapons of war can not be put to the merciless use of victimizing
lives and property to no purpose? * * *
As to the necessity of putting an end, once and for all, to the
recurrence of the appalling experiences of the 'Vorld 'Var,
Japan heartily associates herself \Vith the proposal which is
apparently in the minds of all our colleagues to submit this cate-
gory of arms to a strict circumscription by law. It was Japan's
wish that the measure should early be adopted, and she not only
signed the submarine treaty agreed upon at the vVashington Con-
ference but soon ratified it. She wishes m·ost ardently that the
present conference will revive that question and will succeed in
finding a proper and effective formula, but more satisfactory in
its conception than its invalid predecessor, so that all powers
represented at this table should unite in making it operative in
no distant future. Japan gives her full support to an under-
taking to outlaw the illegitimate use of the legitimate and defen-
sive agency of 'var. (Ibid., pp. 91, 92.)
 nECOMl\IEKD~\.TION OF JURISTS

A co1n1nittee of jurists considered the proposition re-

ferred to committee No. 1 by the conference at its fourth
plenary meeting in regard to " forbidding submarines to
act towards merchant ships, otherwise than in strict con-
formity with the rules, either present or future, to be
observed by surface warships."
This com1nittee of jurists recoininenclecl a declaration
to the following effect:
The undersigned, duly authorized to that effect on behalf of
their respective GoYernments, hereby make the following declara-
tion:
The following are accepted as established rules of internationaL
law:
( i) In their action with regard to 1nerchant ships, submarines
must conform to the rules of international law to which surface
war Yessels are subject.
( ii) In particular, except in the case of persistent refusal to
stop on being duly summoned, or of actiYe resistance to visit or
search, a warship, whether surface vessel or submarine, may not
sink or render incapable of na-vigation a 1nerchant vessel without
having first placed the passengers, crew, and ship's papers in a.
place of safety. For this purpose the ship's· boats are not re-
garded as a place of safety unless· the safety of the passengers
and cre'v is assured, in the existing sea and weather conditions,
by the proxin1ity of land or the presence of another vessel which
is in a position to take the1n on board. (Ibid. p. 189.)
In its report the com1nittee said:
The committee wish to place it on record that the expression
"merchant vessel," where it is employed in the declaration, is -
not to be understood as including a merchant vessel which is at
the moment participating in hostilities in such a manner as to
cause her to lose her right to the in1munities of a merchant
vessel. (Ibid. p. 189.)
While this report was not adopted by the conference,
it is usually regarded in. absence of statement to the con-
trary that an article is to be inter·preted in the sense in
which it is interpreted by the drafting committee.
Loss of immrwnities.-The attempts to define such terms
as "armed ship" have met with many difficulties. At-
tempts to define the term :for purposes of national admin--
6 LONDON NAVAL TREATY, ART. 22, AND SUBl\IAHINES

istration have not been satisfactory. National courts

have been obligated to make interpretations of their
O\Vn la\vs in case of capture of arn1ed ships. Prize
money, bounty to the personnel of a vessel of \var 1naking
a capture, and similar awards \Vere common till recent
times and are still n1ade.
In 1805 in the case of Severa~l Dutch SchurjtS' the
British court in declining to grant head 1noney to the
captors of " armed vessels taken from the enemy, and
described as transports " said:
They may be armed only for their own defense ; as they lla Ye
no commission to act offensiyely, they can not be considered
legally as ships of war, to the effect of entitling the captors to
head money. (6 Robinson Admiralty Reports, p. 48.)
A soine\vhat different attitude \Yas taken by the judicial
.committee of the Privy Council in the case of H. M.
submarine E-14, which destroyed t~e Turkish vessel
Guj Djemal on ~1ay 10, 1915. The prize court had dis ..
missed the clai1n of the personnel of the E-14 for prize
bounty on the ground that under the naval prize act of
1864 the expression " ar1ned ships " should be construed
to mean " a fighting unit of the fleet, a ship con1n1issioned
and armed for the purpose of offensive action in a naval
engagement," and that the G~tj Djernal, acting as a Turk-
ish transport, \Yas not SUCh a ship. rfhe case \VaS dis-
missed without prejudice in case further evidence could
be adduced.
The facts proYed at the first hearing were as follo,vs: (a) The
Gu,j Djemal before the war was a unit of the Turkish Navy, and
appeared as such in the official lists of the Turkish Naval Forces;
(b) the Guj DjeJnal was a fleet auxiliary 1nanned by naYal rat-
ings and con1n1anded by an officer of the Turkish NaYy; (c)
Turkish fleet auxiliaries were usually anned with about four
light 6-pounder guns, but there was no definite evidence that the
,G nj Djmnal was so armed; (d) the Guj Djenutl, at the time of
her destruction, was carrying troops, 'vith their rifles and ammu-
nition, to the number of approxhnately 6,000; (c) the G'ltj D jenw l
had on board six field guns, but there wa~ no definite evidence as
to where the guns were placed; (f) the Guj Dje1nal was escorted
 CASE OF GUJ DJEI\IAL 7
by a torpedo boat destroyer, and either the Guj Djmnal or her
escort fired at E-L1 ~· and (y) rifle fire is effective against the
periscope of a submarine and E-14 had previously lost one peri-
scope, and had the other become damaged she would have been
unable to return through the Dardanelle~ to her base.
r:rhe further facts proYed at the second hearing, in addition to
the head bounty certificates produced, were that: (a) the Gui
D jenutl was in fact armed with six light quick-firing guns; (b)
the fipld gun~ \\'Pre pla(·ed on hoard the G,u j Djernal in the after
part of the ship, and on eaeh side of the ship in sueh manner
that they could be used as an addition to the arman1ent of the
ship, and ammunition for the guns was vlnced alongside the guns:
and (c) field guns had in fact been used in similar circumstancet,
to fire on His :l\Iajesty'~ subnutrines overa ting in the Sea of
l\Iarmora. (:1 Grant, Br. and Col. Prize Cases, p. 568.)
In rendering the judgn1ent of the judicial C01n1nittee,
Lord Sumner said as to the question 'vhether the Guj
Djemal is " an ar1ned ship of any of His Majesty's
enemies":
This is entirely a matter of construction of the section in its
applieation of the facts of this case, and no other question was
raised in the appeal. Little assistance, if any, is to be derive<l
from prior decisions or earlier legislation. No decision before
the war turned on or touched this section, and in the cases de-
(!ided during the war the present contention hatl not been raised.
The older acts go back for n1any generations. At one time the
number of guns, and not of 1nen carrietl by the ship destroyed.
was the 1neasure of the grant, and until the Crilnean 'Var the ex-
pression " armed ship" was not used. ( 1920 A. C., p. 403.)
It "\Vas admitted that the combatant capacity of the
Guj Djemal "\vas not high and that she had not used her
arman1ent, that the armament 'vas only incidental, and
that such contentions had influenced the prize court in
deciding that an armed ship, within the meaning of
the section to be construed, is a fighting unit of the fleet,
a ship commissioned and armed for the purpose of offen-
sive action in a naval engagement. .This construction
was not sustained on appeal, and it "\vas said:
Evidently this proposition is open to ~everal objections. It
makes the rights of His 1\llajesty's forceB cle11encl on the purpose
with which his enen1ies may have dispatched their vessel on \vhat
8 LONDON NAVAL TREATY, ART. 22, AND SUBlVIARINES

either way is a warlike service. It employs a term, " offensive

action," which, in practice, is of indefinite meaning, and in any
case involves an inquiry into the state of mind of the hostile
com1nander. Sir Samuel Evans elucidated his meaning thus in
another passage: "In my opinion, if it were proved that she
carried a few light guns, that would not constitute her an armed
ship any more than a merchant vessel armed for self-defense;
nor would the fact that she carried troops armed with rifles and
some field guns and other ammunition intended to be used after
the landing of the troops."
Their lordships are unable to accept these propositions. Of
the case of a merchant ship they say nothing, for this. is a ques-
tion on the meaning of the words "ship of the enemy," and the
appellants did not contend, nor needed they to do so, that any
ship but one in state service would be covered by those 'vords.
There is again no evidence that the rifles and field pieces were
not intended to be used at sea under any circumstances, little'
as any occasion for their use was to be looked for, and it must
be recollected that defense is not confined to taking to one's heels
or even to returning a blo\v, but, in the jargon of strategy, may
consist in an offensive-defensive, or in plain words in hitting
first. No criteria would more embarrass the application of the
enactment than these, and to introduce the test of a ship's com-
Inission is to introduce something which involves a rewriting of
the section.
Their lordships are of opinion that the words of the section are
plain, and that the facts fit them, and accordingly the appellants
are entitled to succeed; that the decree appealed against should
be set aside; and that this appeal should be allowed with costs,
and that the case should be remitted to the prize court to make
such formal decree in favour of the appellants as may be required.
Their lordships will humbly advise His 1\iajesty accordingly.
( 3 Grant, Br. & Col. Prize Cases, p. 568.)
This judgment shows the difficulty of establishing cri-
teria for such words as " offense " and " defense." It
may also be said that " the test of the ship's comn1ission "
is in general difficult, if possible, for an enemy to apply.
The status of armed merchant vessels has raised ques-
tions in regard to both policy and law. If the law is not
clear, then the relations as belligerent on the offensive,
on the defensive, and as a neutral must be considered and
the policy determined accordingly.
 ARMED l\IERCI-IAXT YESSELS 9
During the World ''Tar there " ·as n1uch difference of
opinion as to the la,v, particularly because of new exi-
gencies of transportation. Early precedents concerned
with the irregular maritirne 'varfare of the period prior
to and during the Napoleonic wars refer to private and
public vessels only.
Publicly owned ar1ned or unar1ned n1erchant vessels
make a practically new category upon 'vhich there is much
difference of opinion. Such publicly owned vessels of a
belligerent certainly have a doubtful status both as re-
gards the belligerents and as regards the neutrals. Nat-
urally there arise questions as to the reasons for and
the liability in consequence of ar1ning. Some 1naintain
that the rights and duties of the vessels themselves would
under 1nodern conditions change. The source of the
equipment and the personnel for its use has in r.ecent
years been entirely different from that of private vessels
of the early years of the nineteenth century.
The volunteer fleet of Imperial Russia and similar
fleets of other States raised questions in regard to piracy
or the piratical nature of armed merchant vessels.
Subsidized merchant vessels and the state control of
shipping introduced a mixed relationship to the state
of the flag.
The position of the United States 'vas not uniform
throughout the war, and when the Dutch ships were
taken over other complications 'vere introduced; while
the requisitioning of other vessels gave rise to further ·
questions.
The problems of conversion and the place of conversion
may properly be considered.
Armed merchant vessels in neutral waters may pro-
voke such correspondence as that between the Nether-
lands and Great Britain.
The attitude of the Conference on Li1nitations of Ar-
mament in 1921-22 and jn 1930 presumed the arming of
merchant vessels.
69574-31-2
lU LONDUX XAVAL TREATY, ART. 22, AND SUBMARINES

1\'Iany neutrality proclan1ations during the "\Vorld ''""ar

anticipated that 1nerchant vessels n1ight be armed.
Neutral 1nerchant vessels received guns and took on
naval gun cre"·s, and the effect upon their status was
debated.
The correspondence of the United States on armed
1nerchant vessels began early in the World
continued till the United States entered the war.
''r
ar and

'fhe effect of anning Inerchant vessels may 1nodify

the operation of the 'vell-established rules of the Decla-
ration of Paris in regard to goods on enemy vessels. It
should be en1phasized that acts of retaliation do not
change the law.
Classes of arnted vesaels.-The classification of armed
vessels in order that their treabnent in time of 'var might
be deter1ninecl has long been a subject of discussion. At
the Hague Conference of 1907 Lord Reay proposed a
classification of vessels of \Yar· into (1) vaisseaux de com-
bat, and (2) vaisseaux auxiliaires. After n1uch discus-
sion and a report by a con11nittee the definition of vais-
seanx auxiliaires 'vas 'vithdra,Yn. In 1912 British regu-
lations stated:
The tern1 " ship of war ., is to be understood as including all
ships designated as such in the accepted sense of the term and
also auxiliary Ye~sels of all descriptions.
In a note of .A. ugust 4, 1914, fro1n the British charg-e
to the Secretary of State of the United States, the atten-
tion of the United States was called to the rules of the
treaty of ,,. . ashington of 1871 as having "the force of
generall~T recognized rules of international la,v." It \Vas
also stated that Ger1nany n1ight attempt to equip and
despatch 1nerchantinen fro1u ports of the United States
for con version on the high seas and that preparations
fol' such purpose n1ight be 1nanifest before the vessel left
port and that in these cases "His Majesty's Government
"~in accordingly hold the lTnited States Government re-
sponsible for any dan1ages to British trade or shipping,
 CLASSES OF ARlVlED VESSELS 11
or InJury to British interests generally, 'rhich Inay be
caused by such vessels having been equipped at or de-
parting frorn United States ports." ( 9 Am. Jour. Int.
La,v, Spec. Sup., July, 1915, p. 222.)
In another note of August 9, 1914, referring to the
previous note, not 1nerely the British point of view as to
the responsibility ~ut also as to the duty of neutrals 'vas
set forth as regards British atn1ed 1nerchant vessels:
As you are no doubt aware, a certain number of British mer-
chant vessels are armed, but this is a precautionary measure
adopted solely for the purpose of defense, which. under existing
rules of in tern a tional law, is the right of all merchant vessels
when attacked.
Aetorcling to the Briti~h rule, British 111erchant yessels can not
be converted into nwn-of-war in any foreign 11ort, for the reason
that Great Britain doe~ not admit the right of any power to do
this on the high seas. 'rhe duty of a neutral to intern or order
the inunediate devarture of belligerent vessels is lhnited to actual
and potential n1en-of-war, and in the opinion of His l\iajesty's
GovernmPnt there can therefore be no right on the part ot
neutral govPrnments to intern British anned 1nerchant vessels
which can not be converted into n1en-of-war on the high seas
nor to require them to land their guns before proceeding to sea.
On the other hand, the German Government have consistently
c:lahnecl the right of conversion on the high seas, and His
l\Iajesty's Governn1ent therefore maintain their clahn that ves-
sels whkh are adapted for conversion and under German rules
111ay be co11verted into n1en-of-·war on the high seas should be
interned in the absence of binding assurances, the responsibility
for which n1ust be assumed by the neutral govern1nent concerned,
that the;y shall not be so converted. (Ibid. p. 223.)
The United States in a note of August 19, 1914, dis-
claimed as a correct statement of its responsibility the
assertion of the British note. The British ambassador
on August 25, 1914, gave the Secretary of State "the
fullest assurances that British 1nerchant vessels will
never be used for purposes of attack; that they are
merely peaceful traders arn1ed only for defense; that
they ,vill never fir~ unless first fired upon; and that they
'vill never under any circumstances attack any vessel."
(Ibid. p. 230.) Later, on September 9, 1914, the atti-
12 LONDOX NAVAL TREATY, ART. 22, AND SUBl\IARIXES

tude "~hich the British affirtned as correct under interna-

tional la 'v 'vas stated.
A 1nerchant Yessel ar1ned purely for self-defense is, therefore,
entitled under international law to enjoy tlle status of a peaceful
trading ship in neutral ports and IIis :Majesty's Goyenunent clo
uot ask for better treatment for British merchant ships in this
respect than n1ight be accorded to those of other powers. They
consider that only those 1nerchant ships which are intended for
use as cruisers should be treated ns ships of war and that the
question whether a particular ship carrying an annament is in-
tended for offensive or defensiye action must be decided by the
simple criterion whether she is engaged in ordinary com1nerce and
Pnlbarking cargo and passengers in the ordinary way. If so,
there is no rule in international law that would justify such Yessel,
eyen if armed, being treated otherwise than as a peaceful trader.
In urging this Yiew upon the consideration of the United States
GoYer1nnent the British ambassador is instructetl to state that it
is belieYed that German 1nerchant Yessels with offensh~e arma-
nlen t ba ye escaped frmn A1nerican ports, especially frmn port~
in South An1erica, to prey upon British commerce in spite of all
the precautions taken. Ger1nan cruisers in the Atlantic continue
by one 1neans or another to obtain ample supplies of coal shipped
to the1n fro1n neutral ports; and if the United States Government
take tlle Yiew that British 1nercbant Yessels which are bona fide
engaged in cmnmerce and carry guns at the stern only are not per-
Jnitted purely defensive armmnent, unavoidable injury may en-
sue to British interests and indirectly also to United States trade
which will be deplorable. (Ibid. p. 233.)
This note see1ns to mix to son1e degree, legal and com-
nlercial reasoning.
On l\farch 2, 1916, the British Governn1ent 1nade
public instructions issued in regard to armed n1erchant
ships ""hich 'vere stated to be an affirmation of a policy
'vhich had ren1ained unchanged throughout the war.
In these instructions the circu1nstances under \Yhich
ar1nan1ent should be employed were as follo,vs:
(1) The anna1nent is supplied for the purpose of defense only.
The object of the master should be to avoid action wheneYer
possible.
(2) Experience has shown that hostile submarines and air-
craft haYe frequently attacked n1erchant vessels without warn-
ing. It is in1portant, therefore, that craft of this description
 INSTRUCTIONS TO ARl\iED MERCHANT VESSELS 13
should not be allowed to approach to short range, at which a
torpedo or b01nb launched \vithout notice would almost certainly
be effective. British and allied submarines and aircraft have
orders not to approach merchant vessels; consequently, it may be
presn1ned that any submarine or aircraft which deliberately ap-
proaches or pursues a merchant vessel does so with hostile inten-
tion. In such cases fire may be opened in self-defense in order to
prevent the hostile craft frmn closing to a range at which resist-
ance to a sudden attacl\: with bomb or torpedo would be impossible.
(3) An arn1ed merchant vessel proceeding to render assistance
to the crew of a vessel in distress n1ust not seek action with any
hostile craft, though if she herself is attacked while doing so fire
ma;y be opened in ~elf-defense.
( 4) It should be reinembered that the flag is no guide to na-
tionality. Gennan submarines and anned merchant vessels have
frequently employed the British, allied, or neutral colors to ap-
proach nnrletected. Though, however, the use of disguise and
false colors to escape capture is a legitimate ruse de guerre, its
adoption by defensively armed 1nerchant ships 1nay easily lead to
misconception. Such vessels, therefore, are forbidden to adopt
any form of disguise which n1ight cause them to be n1istaken for
neutral ships. (1917 N. ,V. C., International Law Documents,
p. 154.)
In paragraph (2) there is provision for opening fire
by the armed merchant vessel, and paragraph ( 4) shows
some o£ the possible consequences anticipated from arm-
ing o£ merchant vessels. These depart from the assur-
ances of August 25 that British armed 1nerchant vessels
"will never fire unless first fired upon, and that they will
never under any circumstances attack any vessel."
In 1916 in a document ordered printed by tf1e Senate o£
the United States a translation o£ a- re1;ort citing the
opinion of Prof. W. J. M. von Eysinga, then of the Uni-
versity o£ Leiden, later a judge of the Pern1anent Court
o£ International Justice, it 'vas said:
It is difficult to predict what is to be the development of the
obscure legal category ships. In any case this development will
be strongly influenced by the attitude of insurance companies
toward armed merchantn1en. Just now no other governments
seen1 as yet to have followed the example of the British Admi-
ralty. Still the number of armed ships sailing under the British
flag keeps on increasing and the other govern1nents will be con-
14 LONDOX XAVAL TREATY, ART. 22, AND SUBl\IARINES

strained by the fact to inquire what shall be their attitude toward

these ships both in time of peace and in time of war. If an Eng-
lish "·ar were to arise, would not neutral powers transgress by
admitting a1·med 1nerchantinen to their ports and waters? 'Vhat
n1easures will neutral powers be obliged to take in order to
prevent these arn1ed ships frmn assun1ing the right to enforce
restrictiYe nwasures on neutral commerce? Does pul>lic security
allow of adinitting armed ships to enter port, eYen in tilne of
peace, without having unloaded their explosives? And are bellig-
erents to take these armed ships as belligerent ships, or are they
to have to treat them otherwise? If so, in what nutnner?
All these questions and many others would lose their practical
significance if a way were found to abolish the institution of
arn1ed merchnntinen. It will not be an easy n1atter. But pos-
sibly Great Britain tnight be induced to abandon the course upon
which she has entered. It need not be said that the problem
would no longer have a practical side if a way "·ere found to
" regularize" the anned ships by granting theul the juridical
status of what in reality they seem to be, viz, auxiliary Inen-of-
war. The study of this solution should also inclulle the question
whether a govern1nent arming ships without assu1ning re~l1onsi­
bility for their acts is satisfactorily perforn1ing the duties which
members of the cornn1unity of nations o'Ye to tlwir fellows. ( S.
Doc. No. 332·, 64th Cong., 1st sess., p. 43.)
Attitude of 1\'etherlands.-T'he Netherland declaration
of neutrality~ August 5, 1914, denied access to continental
Dutch ports to "warships or ships assi1nilated thereto."
British opposition to this Dutch position W'as in1n1edi-
ate in a telegra1n of Sir Ed,var<l Gre~\ .A.11gnst R. 1914.
(British Parliamentary Papers, 1\Iisc .. No. 14 (1917) Cd.
8690.) In a letter of April 7, 1915, the Dutch ~finister of
Foreign Affairs said of his Govern1nent:" 'fhe obseryation
of a strict neutrality obliges then1 to place in the category
of vessels assi1nilated to belligerent 'varships those Iner-
chant vessels of the belligerent parties that are provided
'vith an ar1na1nent and that consequently ""onlcl be
capable of conunitting acts of ""ar" (Ibid, p. 3), and
on July 31, 1915, he again 1naintains the Gover11n1ent's
purpose to exclude " any belligerent n1erchant Yessel
ar1ned 'vith the object o:f committing, in case of Deed, an
act of 'Yar." (!bill, p. G.) 'rhe Govern1nent at the san1e
 ATTITUDE TO"T ARD AR::\IED ::\IERCHAXT YESSELS 15
time ad1nits that such ar1nament n1uy be law·iul, so tar
as the belligerent is concerned.
In a letter of April 4, ~917, ~Ir. Loudon says:
In fact, a state in the Yery ~pecial geographical position in which
the Netherlands find then1sel\·es in relation to the belligerent
nations could not insure respect for neutrality of the territory
under its jurisdiction, except by forbidding access to this territory
not only to warships but al~o to eYery annecl yessel. (Ibid., p. 8.)
Lord Robert Cer>il in )lay, 1917, 1nacle an extended
argument to Inaintuin that an" urn1edinerchantship, such
as those w·ith 'vhich "·e are now dealing," can in no sense
be ussi1nilated to a "·urship, "·hich phrase should cover
only a uxiliury yessels of various kinds and not armed
merchant vessels. (Ibid.~ p. 11.) He also inti1nated that
Great Britain "n1ust hold the Nether lands Goyerninent
responsible for all losses to British ships trading 'vith
Holland so long us those vessels are, it they enter a
Netherland port, obliged to forego their right to provide
then1selves 'vith means of self-defense." (Ibid., p. 13.)
rrhis responsibility the Dutch Govern1nent declined
""·ithout hesitation."
South A1nerican attitude to1.-oarcl arnuxl Jnerchant ·z·es-
sels.-..<\.£ter
. the publication of the n1en1orunchnn of the
Deparbnent of State of Septe1nber 19, 191:L1 son1e of
the South and Central . A._nlerican states inclined to follow'
the sa1ne procedure in regard to the treahnent of armed
merchant vessels. So1ne of these states~ ho,vever, found
cause :for co1npluint in the nr1ning of Inerchunt vessels,
and domestic la,vs in son1e states prohibited the entrance
of vessels 'vith explosives on board~ and so1ne states had
other regulations restricting the entrance and sojourn of
such vessels. Complaint w·as Inacle in South .A.Jnerica in
the early days of the \'T orld ''r
ar that it ar1na1uent 'vas
solely tor defense it would generally be useless, that the
responsibility tor the use of ar1na1nent should be upon the
state 'vhose flag the vessel f:le,Y: that irresponsible Iner-
1
Naval 'Var College, International Law Topics, 191G, p. 03,
16 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

chantmen "\Vould not be familiar with or observe the laws

of mariti1ne warfare; that such vessels would be neither
privateers nor 1nerchantmen but privileged vessels free
from the restrictions placed upon vessels by the existing
laws of neutrality. Further, if the arms were used solely
for defense, the use of these ar·ms or the fact that they
were on board for possible use would justify an enemy
in attacking such vessels 'vithout meeting the usual obli-
gations prior to attack, thus unnecessarily endangering
innocent persons and property. Some of these states in
early discussions and reports predicted that the arming
of mer·chant yessels would be followed by abuses which
Vlould give rise to complications which might and should
be a voided by enrolling all armed vessels in the regular
or auxiliary forces.
British opinion, 1916.-0n December 21, 1916, the
First Lord of the Admiralty, replying to a question on
armed merchant vessels, said:
His Majesty's GoYernment can not admit any distinction be-
tween the rights of unarn1ed merchant ships and those armed
for defensive purposes. It is no doubt the aim of the German
Government to confuse defensive and offensive action ·with the
object of inducing neutrals to treat defensively armed vessels as
if they were tnen-of-war. Our position is perfectly clear-that a
merchant seaman enjoys the ilnmemorial right of defending his
vessel against attack or visit or search by the enemy by any
means in his power, but that he must not seek out an enemy in
order to attacl{ him-that being a function reserved to commis-
sioned men-of-\var. So far as I an1 aware, all neutral powers,
without exception, take the same view, which is clearly indi-
cated in the Prize Regulations of the Germans themselves. I
have confined Inyself to stating the general position, but my
honorable friend may rest assured that the departments con-
cerned are devoting continuous attention to all questions con-
nected with the theory and practice of defensive armament.
(88 Parliainentary Debates, Commons, 1916, 5th series, p. 1627.)
Case of the "Pana1na."-In the case of the Panavrna, a
Spanish Yessel carrying mail, 1898, the Supren1e Court
said:
 DAYS OF GRACE, AXD ARl\IING 17
It may be assumed that a primary object of her armament, and,
in time of peace, its only object, was for purposes of defense.
But that arn1ament was not of itself inconsiderable, a9 appears
not only from the undisputed facts of the case but from the
action of the district court, upon the application of the comino-
dore commanding at the port where the court was held, and on
the recommendation of the prize co1nmissioners, directing her
arms and amn1unition to be deliYered to the com1nodore for the
use of the Navy Department. .And the contract of her owner with
the Spanish GoYern1nent, pursuant to which the ar1nament had
been put on board·, expressly proYided that in case of war that
Government Inight take possession of the vessel with her equip-
ment, increase her armament, and use her as a war Yessel; and,
in these and other provisions, evidently conten1plated her use for
hostile purposes in time of war. (176 "G. S. [1900] 530.)
Article 14 and days of grace.-Article 14 of the Wash-
ington Treaty Limiting N aYal . A..rinainent, 1922, provides
that-
No preparations shall be 1nade in merchant ships in time of
peace for the installation of warlike ar1naments for the purpose
of converting such ships into "\"essels of war, other than the neces-
sary stiffening of decks for the mounting of guns not exceeding
6-inch (152 millimet0rs) caliber. (1921 N. \Y. C., International
Law Documents, p. 299.)
Many queries ha Ye arisen as to the trea bnent of Iner-
chant ships having decks stiffened for 6-inch guns.
It seems to be clear that under article 5 of Sixth Hague
Convention, 1907, relative to the status of enemy Jner-
chant ships at the outbreak of hostHities, the question
tnight arise. Article 5 is as follo·ws :
The present convention does not affect merchant ships whose
construction indicates that they are intended to be conYerted into
ships of war.
1'he French text, 'vhich is official, is:
La presente Convention ne vise pas les naYires de co1n1nerce
dont la construction indique qu'ils sont destines a etre trans-
formes en batiments de guerre.
The representatives of the United States at The Hague
did not sign this on the ground that it should have been
18 LONDOX NAVAL TREATY, ART. 22, AND SUBMARINES

more positive in its obligations in order to conform v;ith

existing la"·~ and Great Britain denounced the conventjon
in 1925 for si1nilar reasons.
This article 5 'vas proposed by the British delegation in
1907, and the 'Yords used were," navires marchands enne-
lnis susceptibles d'etre transformes en vaisseaux de com-
bat." 'The drafting co111111ittee made this read, "navires
marchands qui ont ete designes d'avance pour etre trans-
formes en bati1nents de guerre."
This a.rticle 5 'Yas discussed at length in the conference.
In the discussion Lord Reay, of the. British delegation,
said he had-
no idea of casting- suspicion upon the good faith of Governments,
but that the British delegation consider vessels capable of con-
version as " potential " fighting ships, and, therefore, as forming
part of the IHtval forces of a belligerent. Hence he considers it
necessary to stipulate clearly that such vessels do not enjoy the
privileged status granted to the other vessels referred to in the
project. Article 5 is the essential condition upon which depends
the adoption of the project as a 'vhole by his delegation. (3
Proce~ings Hague Peace Conferences, Conference of 1907, Car-
negie Endow1nent for International Peace, p. 1020.)
Lord Reay had earlier said "vessels built 'vith a view
to 'var can not escape the treatn1ent to 'vhich 'varships are
subjected." (Ibid., p. 941.) In this plenary conference
it 'vas explained that it 'vas not the purpose to give ex-
emptions to n1erchant ships intended for conversion into
vessels of 'var but that these " should be expressly left
out of the proposed provisions and kept under the juris-
diction of the present la"·· That is the object of article
5, according to 'vhich the build of the ships in question
should serve to indicate their ulti1nate purpose." (Ibid.,
vol. 1, p. 250.)
As article 14 distinctly states the purpose of stiffening
the decks as " for the purpose of converting such ships
into vessels of 'var," 1nanifestly such vessels 'vould not
have the advantages of the days of grace as in the class
of regular 1nerchant vessels, and it can scarcely be imag-
 NAVAL UNIT 19
ined that a belligerent 'vould accord to such yessels the
sa1ne privileges in other respects.
LYaval unit.-Questions have long been raised as to
"·hat constitutes a naval unit. 'iVith the Declaration of
Paris of 1856 by 'vhich a blockade "in order to be bind-
ing, n1ust Le effective-that is to say, 1naintained by a
force sufficient really to prevent access to the coast of the
enen1y "-there came questions as to "·hat force vvas
essential to 1uake it sufficient under the ter1ns. The Su-
prenle Court of the United States in 1899 in the case of
The Olinde Rodrigtttes (174 U. S. 510) said that "what
1night be sufficient force "·as necessarily left to be deter-
lnine<.l n~<..:ording to the particular circun1stances." Gen-
eral ()r<.lcr 492 of the Secretary of the K a vy, June 20,
1898, had stated. that there 1nust be maintained "a force
sufficient to render ingress to or egress fro1n the port
dangerous." Early decisions had used si1nilar expres-
sions as "exposure to certain danger," "dangerous to
atte1npt to enter it," "attended 'vith evident danger,';
"incurring 1~islc" 1"he court would not allo'v the cap-
tured vessel to plead that blockade 'Yas not legally
effectiYe.
The question as to " 'hat 1night constitute a blockading
force has been raised fron1 time to ti1ne and 'vas par-
ticularly considered at the London Naval Conference,
1908-9. The official report on the Declaration of London,
'v hich declaration has not been ratified, said :
'Vhen a govennnent decides to undertake blockading operations
against sonw part of the enemy coast it assigns a certain number
of warships to take part in the blockade and intrusts the conl-
mand of these to an officer whose duty is to insure by this
n1eans the effectiveness of the b~ockade. The connnander of the
naval force thus fonned distributes the ships placed at his dis-
posal according to the configuration of the coast and the geo-
gTaphical position of the blockaded places and gives each ship
instructions as to the part which she has to play, and especially
as to the zone intrusted to her surveillance. It is all of the
zones of surveillance together, organized in such 1nanner that the
blockade is effective, that forn1 the radius of action of the
blockading naval force.
20 LONDON NAVAL TREATY, ART. 22, AND SUBl\iARINES

The radius of action so understood is closely connected with

the effectiveness of the blockade, and also with the number of
ships employed on it.
Cases may occur in which a single ship will be enough to lnain-
tain a blockade effectiYe-for instance, at the entrance of a port
or at the mouth of a river with a small estuary-on condition
as circumstances allow the blockading ship to stay near enough
to the entrance. In that case the radius of action is itself near
the coast. But, on the contrary, if circumstances force her to
remain far off, it n1ay be that one ship would not be enough to
secure effectiveness, and to maintain this it will then be necessary
to add other ships. (1909 N. ,V. C., International Law Topics, p.
49; Br. Parliamentary Papers, l\lisc. No. 5 [1909], Cd. 4555, p.
255.)
This report and other opinions see1n to indicate that
the forces engaged in a single operation or under the
com1nand of one officer detailed for the operation would
be regarded as a unit. The "forces raised or to be
raised" 1night be under a general con1mand but would
not be a unit in the sense here used unless engaged in
one operation against a single objective. Certainly the
ships under a single command and engaged in a single
operation would be regarded as a unit.
Questions relating to the distribution of prize 1noney
have often given rise to differences of opinion as to what
vessels may share as taking part in a capture. "Vessel-3
in sight" were often regarded as participating. During
the ':Vorld War such questions naturally came before the
Allies. A convention between France and Great Britain,
agreed upon in 1914 and later acceded to by Italy,
provided:
ART. 4. 'Vhen a capture shall be 1nade by a cruiser of one of
the allied nations in the presence and in the sight of a cruiser
of the other, such cruiser having thus contributed to the inthni-
dation of the enemy and encouragement of the captor, the adjudi-
cation thereof shall belong to the jurisdiction of the actual captor.
ART. 5. In case of condemnation under the circun1stances de-
scribed in the preceding articles :
1. If the capture shall have been made by vessels of the allied
nations whilst acting in conjunction, the net proceeds of the
prize, after deducting the necessary expenses, shall be divided
 AMERICAN PROPOSAL, 1916
. 21
into as many shares as there were men on board the capturing
vessels, without reference to rank, and the shares of each ally as
so ascertained shall be paid and delivered to such person as may
be duly authorized on behalf of the allied governn1ent to receive
the same, and the allocation of the amount belonging to each
vessel shall be made by each government according to the laws
and regulations of the country.
2. If the capture shall have been made by cruisers of one of
the allied nations in the presence and in sight of a cruiser of
the other, the division, the payment, and the allocation of the net
proceeds of the prize, after deducting the necessary expenses, shall
likewise be n1ade in the manner above mentioned. (1917 N. ,V. C.,
International Law Documents, p. 146.)
The capture of a vessel under such conditions, 'vhile
regarded as a joint capture, is not the act of a force undrr
a single co1nmand but of a :force constructively engagecl
in a single operation resulting in the capture of the prize.
An~erican p1·oposal~ 1916.-The Secretary of State
1nade to the ambassadors of the Governments of Great
Britain and allied po"~ers in 1916 a proposal in regard
to a 1nodus vivendi as to submarines and armed merchant
Yessels. In this con1n1unication he .said:
Your excellency will understand that in seeking a formula or
rule of this nature I approach it of necessity from the point of
view of a neutral, but I believe that it will be equally efficacious in
preserving the lives of all noncombatants on merchant vessels of
belligerent nationality.
l\Iy comments on this subject are predicated on the following
propositions:
1. A noncombatant has a right to traverse the high seas in a
merchant vessel entitled to fly a belligerent flag and to rely upon
the observance of the rules of international law and principles
of humanity if the vessel is approached by a naval vessel of
another belligerent.
2. A Inerchant vessel of enemy nationality should not be at-
tacked without being ordered to stop.
3. An ene1ny merchant vessel, when ordered to do so by a
belligerent submarine, should immediately stop.
4. Such vessel should not be attacked after being ordered to
stop unless it attempts to flee or to resist, and in case it ceases to
flee or resist the attack should discontinue.
5. In the e-vent that it is in1possible to place a prize crew on
board of an enemy merchant vessel or convoy it into port, the
22 LOXDOX ~AYAL T'REATY, ART. 22, AND SUBMAlliXES

ve~sel nu1y be ~unk, provided the crew and vassengers have been
re1noved to a plate of safety. (1916 U. S. For. Hel., Sn11., v.
146.)
rrhe An1erican proposal, in the opinion of the French
a1nbassador, see1ned to raise questions that 'vere not easy.
rrhe ainbassador said:
The chief difficulty will be whn t guaranty shall we have that
the conten1plated agree1nents, ·which are shnply a reenactinent of
old established rules, will henceforth be observed'? Shall we have
yours? If so, well and good, but I doubt you will undertake such
a ri~ky thing. * * * The que~tion of the vlace of snfety is
also a difficult one. Up to now the Gern1ans have understood by
this the packing of veople in snutll lJoats ahanclonecl in the open
sea where they have cUed by the hundred, 1nore than probably a
cruel, lingering dea tll, In any of then1. The Gennan note eoncern-
ing the Frye announces the abandmnnent of this particular part
of the frightful systen1 of that nation. But it is not clear what or
whmn this applies to. It seems as if only ships under the Ainer-
ican flag were to benefit by it. If you could let me know how you
interpret the pron1ise, I should be very thankful and it Inight be
of real use. (Ibid. p.149-.)
The proposal of the United States diclnot seen1 reason-
able to the British Governn1ent, and the An1erican ainbas-
sador in London reported that the pressing of the Alner-
ican proposal w·ould be regarded by the Allies as yield-
ing to Gern1an influences and as 1nore or less unfriendly
interference.
Gern£an. a.ttitttule, 1916.-0n February 4, 1916, just a
year after the announcement of submarine warfare by
Ger1nany, the German ambassador in Washington, in a
con11nunication to the Secretary of State, said that the
Ger1nan subn1arine 'var against England's con11nerce at
sea " is conducted in retaliation of England's inhtnnan
""ar against Ger1nany's commercial and industrial life.
It is generally recognized as justifiable that retaliation
1nay be en1ployed against acts co1nmitted in contraven-
tion of the la'v of nations. Germany is enacting such
retaliation because it is England's endeavor to cut off all
imports from Germany by preventing even legal com-
merce of the neutrals with her and thereby subjecting
 ARl\fED MERCHAXT YESSELS, 1914-1918 23
the Ger1nan population to starvation. In answer to
these acts Gennany is tnaking efforts to destroy Eng-
land's co1n1nerce at sea, at least as far as it is carried
on by enemy vessels. I£ Ger1nany has not,vithstanding
li1nited her submarine \Varfare, this \Yas clone in view of
her long-standing friendship \Yith the United States and
in vie\v of the fact that the sinking o£ the Lusitania
caused the death of citizens o£ the United States.
1,hereby the German retaliation affected neutrals which
'\\"as not the intention, as retaliation n1ust not aim at
other than ene1ny subjects." (1916, U. S. For. Rel. Sup.~
p. 157.)
Ar1ned rnerchant vessels and subn1.arines.-During the
lVorld 'Var, 1914-1918, there \Yas 111 uch discussion o£ the
relations of anned merchant vessels and submarines. It
\vas readily athnittecl that a shell fron1 a gnn of even
s1nall caliber n1ight destroy a subn1arine. So1ne states
have pern1ittecl arming of Inerchant vessels \Yith guns not
exceeding 6 inches. The right of an ene1ny n1erchant
vessel to resist by force visit and search has long been
recognized and \Vas formerly grounded upon the need
of protection against pirates and privateers. In the days
just before the 'Vorld 'Var British officials had argued
that " the proper reply to an armed 1nerchantman is
another merchanhnan armed in her O\Yn defense," and
that " surely these ships will be quite valueless for the
purpose o£ attacking armed vessels o£ any kind." In
1914 1\ir. Churchill, First Lord of the British Admiralty,
said: " These are armed solely for defensi Ye purposes.
Their guns are mounted in the stern and can fire only on
the pursuer." (59 Parliamentary Debates, Commons,
1914, p. 1925.) In 1916 the Gennan Foreign Office con1-
municated to the American ambassador in Ger1nany what
purported to be copies o£ instructions to British mer-
chant vessels, found on board the English steamer lVood-
field.
In no circumstances is this paper to be allowed to fall into
the hands of the enemy.
24 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

This paper is for the n1aster's personal information. It is not

to be copied, and when not actually in use is to be kept in safety
in · a place where it can be destroyed at a moment's notice.
Such portions as call for immediate action may be communi-
cated verbally to the officers concerned.
APRIL, 1915.
INSTRUCTIONS REGARDING SUB:i\IARINES APPLICABL~ TO
VESSELS CARRYING A DEFENSIVE ARMAl\IENT

1. Defensively armed vessels should follow generally the instruc-

tions for ordinary merchant ships.
2. In subn1arine waters guns should be kept in instant readi-
ness.
3. If a submarine is obviously pursuing a ship by day, and it iR
evident to the 1naster that she has hostile intentions, the ship
pursued should open fire in self-defense, notwithstanding the sub-
marine may not have committed a definite hostile act, such as
firing a gun or torpedo.
4. In view of the great difficulty in distinguishing a friend
from an enemy at night, fire should not be opened after dark
unless it is absolutely certain that the vessel fired at is hostile.
5. Before opening fire the British colors must be hoisted.
It is essential that fire should not be opened under neutral
colors.
6. If a defensively armed vessel is pursued by a submarine the
master has two alternatives:
(a) To open fire at long range immediah~ly it is certain that
the submarine is really in pursuit.
(b) To retain fire until the submarine has closed to a range,
say, 800 yards, at which fire is likely to be effective.
In vie'v of the very great difficulty of distinguishing between
friendly and hostile submarines at long range (one British· sub-
marine has already been fired at by a merchant vessel which
erroneously supposed herself to be pursued by the submarine), it
is strongly recomn1ended that course (b) should be adopted by all
defensively ar1ned ships.
7. A submarine's flag is no guide to her nationality, as Ger-
man submarines frequently fly British colors.
8. Vessels carrying a defensive armament and proceeding to
neutral ports 1nust not be painted in neutral colors or 'vear a
neutral :tlag.
9. It is recommended thut in neutral ports, particularly those
of Spain, the ar1nament should be concealed as far as possible.
 \VASHINGTON CONFERENCE AND SUBl\fARINES 25
A can,·as coyer is reco1nmended for this purpose. (1916 U. S.
For. Rel., Sup., p. 196.)
'I'he German ambassador handed to the Secretary of
State of the United States on January 7, 1916, the follo,v-
ing state1nent :
( 1) German submarines in the :Mediterranean had from the
beginning- orders to conduct cruiser warfare against enemy mer-
chant Ye~sels only in accordance with general principles of inter-
national law, and in particular, 1neasures of reprisal, as applied
in the war zone around the British Isles were to be excluded.
(2) German submarines are therefore permitted to destroy
enewy nwrchant ,-~ssels in the l\Iediterranean; i. e., passenger as
well a~ freight ~hivs as far a~ the~· do not try to escape or offer
resistance, only after vassengers and crews have been accorded
safety.
(3) All cases of destruction of enemy nwrchant ships in the
~1editerranean in which Gern1an submarines are concerned are
made the subject of official investigation and, be&ides, submitted
to regular prize court proceedings. In so far as American inter-
ests are concerned, the Genuan Government will communicate
the result to the American Government. Thus, also, in the
Persia case if the circumstances should call for it.
( 4) If commanders of Gerwan &ubmarines should not have
obeyed the orders given to the1n, tbey will be punished; further-
n1ore, the Gennan GoYernment will n1ake reparation for damage
caused by death of or injuries to American citizens. (1916 U. S.
For. Rel., Sup., p. 144.)
Sttbn~arines and the lV askington Conference on Limi-
tation of Aru?-a(Jr~ents, 1921-22.-In the early meetings of
the Conference on the Li1nitation of Annaments, 1921-22,
there had been discussion as to the use or abolition of
sub1narines. There w'as also an understanding that if
the use of submarines "\vas not prohibited rules regulating
their use would later be introduced.
l\Ir. Root said that the resolutions he was about to read were
based on two lessons taught by the Great War. One fact which
seemed very clear was that mere agreements between govern-
ments, rules formulated among diplomats in the course of the
scientific development of international law, had a very weak
effect upon belligerents when violation would seem· to aid in the
69574-31--3
26 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

attainment of the great object of victory. This has been clearly

demonstrated in the war of 19<14-1918.
Another fact established by the war was that the opinion of
the people of civilized nations had tremendous force and exer-
cised a powerful influence on the condition of the belligerents.
The history of propaganda during the war had been a history of
an almost universal appeal to the public opinion of mankind,.
and the result of the war had come largely as a response.
The public opinion of mankind was not the opinion of scientific
and well-infonned men but of ill-infor1ned men who formed
opinions on silnple and direct issues. If the public could be con-
fused, public opinion was ineffective; but if the public was clear
on the fundamentals of a question, then the opinion of 1nankind.
'Yas something which no nation could afford to ignore or defy.
The purpose of the resolutions he was about to read was to.
put into such simple form the subject which had so stirred the-
feelings of a great part of the civilized world that the man in
the street and the man on the farm could understand it.
The first resolution, l\1r. Root said, aimed at stating the ex-
isting rules, which, of course, were known to the committee,
but ·which the mass of pe0ple did not know, in such a fonn that
they would be understood by everyone.
Mr. Root then read the following:
"I. The signatory powers, desiring to make nwre effective the
rules adopted by civilized nations for the protection of the lives
of neutrals and noncmnbatants at sea in time of war, declare that
among those rules the follo,ving are to be deemed an established
part of international law:
"1. A merchant vessel must be ordered to stop for visit and
search to determine its character before it can be captured.
"A merchant vessel must not be attacked unless it refuses to.
stop for visit and search after warning.
"A merchant vessel must not be destroyed unless the crew and
passengers have been first placed in safety.
" 2. Belligerent submarines are not under any circun1stances
exen1pt from the universal rules above stated; and if a sub-
marine can not capture a merchant vessel in conforn1ity with
these rules the existing law of nations. requires it to de.sist from
attack and from capture and to permit the merchant vessel to pro-
ceed unmolested.
"The signatory powers invite the adherence of all other civil-
ized powers to the foregoing statement of established law to the-
end that there may be a clear public understanding throughout
the 'vorld of the standards of conduct by ':rhich the public opinion
of the world is to pass judgment upon future belligerents."
 PROPOSED TREATY, 1922 27
This, l\Ir. Root said, was a distinct pronouncement on the Ger..
man contention during the war in regard to the conflict between
the convenience of destruction and the action of a belligerent
under the rule~ of international law. (Conference on Limitation
of Armament, 1921-1922, p. 594.)
1"'he preamble of Mr. Root's resolution was in part em-
bodied in the prea1nble of the treaty as finally adopted by
the conference and in part embodied in Article I. The
proposed treaty, 'vhich was not ratified, clearly states that
it desires "to make more effective the rules adopted by
civiljzed nations," and in Article III provides penalties
for failure to observe these rules. These penalties "\vere
to be applicable not alone to those in the submarine serv-
ice but to all branches or to " any person in the service
of any po,ver." The ratification of this treaty would have
made the rules and the sanc~ion general.
The prea1nble of the proposed treaty stated that it is
the desire of the five powers signing the treaty "to make
1nore effective the rules adopted by civilized nations for
the protection o£ the lives of neutrals and noncombatants
at sea in time of war."
Article I, if ratified, would for the five powers declare
certain " rules adopted by civilized nations," and that
" the following are to be deemed an established part of
international law."
The statements in Article I are not necessarily correct
statements of the law, even though so declared by the five
po,vers, as is evident from Articles II and III, which, if
the rules are adopted, unnecessarily invite assent of other
civilized po,vers, because, if "established," as stated in
the English text of Article I, ot, as " formiilg a part of,"
as stated in the French text, no assent would be necessary,
but could be assumed.
Neutrals and noncombatants may be on either belliger-
ent or neutral merchant vessels. In 'Article I (1) there
is no distinction made as to whether the merchant ves-
sel is under neutral or belligerent flag, and there is un-
questionably a difference in the permissible treatment of
vessels under neutral and under belligerent flags.
28 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

An enemy merchant vessel under existing international

la'v 1nay be seized without previous orders to submit to
visit and search. Article I of the treaty provides that a
merchant vessel, without distinction as to flag, "must be
ordered to submit to visit and search before it can be
seized," thus introducing a new limitation applying to all
vessels of war. Further, it has been common to seize
even neutral merchant vessels 'vithout visit and search
if evidence in possession of the vessel of "\Var is sufficient
to 'varrant seizure, on orders from the Government, or on
suspicion, at the_ risk of the seizing party, which might
be contrary to the provision of Article I.
Article I does not, however, necessarily require visit
and search before seizure, but does require that the vessel
" be ordered to submit to visit and search to determine
its character before it can be seized." Often it is not the
character of the vessel that is in question but the nature
o£ the cargo, the destination, etc. A strict interpretation
places a still further limitation upon the action of the
sejzing vessel that the visit and search be to determine
the character of the merch~nt vessel, and in the division
(2) this is stated to be among "the universal rules," non-
conformity to which requires that the vessel be allowed to
proceed.
The general implication from the 'vording is that the
rules of Article I are to be deemed to be established "for
the protection of lives of neutrals and noncombatants~"
\\hereas the rules in regard to visit and search have been
7

developed primarily for the dealing with property rat.her

than for protection of life.
'Vhile the original proposition of Mr. Root stated tha~
the n1erchant vessel "must be ordered to stop for visit
and -search to determine its character before it can be
captured," in the final text this 'vord "captured" 'Yas
changed to " seized." Mr. Hanihara had suggested the
change from "capture " to "-seize."
The original proposition of .Mr. Root also stated: " ..A.
merchant vessel must not be attacked unless it refuse to
 DISCUSSION, 19 21-19 2 2 29
stop for visit and search after warning." To this 'vas
later added the words, " or to proceed as directed after
seizure."
In the next clause there was no change.
In the last paragraph numbered (2), the word "cap-
ture" at the end of the paragraph was changed to "seiz-
ure." The ·word "capture" in the second clause was
not changed.
Mr. Root at the meeting o~ December 29, 1921, speak-
ing of Resolution I, said:
This article did not purport to be a codification of the laws of
nations as regards merchant vessels, or to contain all the rules.
It said that the following were to be deemed among the existing
rules of international law.
Speaking further of these rules of Resolution I, Mr.
Root said: " The public opinion of the world said that
the submarine 'vas not under any circumstances exempt
from the rules above stated; and if so, a submarine could
not capture a merchant vessel." Mr. Root said:
Resolution I also explained in authorized form the existing law
and could be brought forward when the public asked what changes
were proposed. (Conference on the Limitation of Armament,
p. 618.)

Sir John Salmond, while not doubting the substantial

accuracy of the resolutions proposed by Mr. Root, re-
garded them as not free from ambiguities and :formal de-
fects. He asked 'vhether under Resolution I, stating
that " ' a merchant vessel must not be destroyed unless
the crew and passengers had been first placed in safety,'
was this intended to give absolute immunity fron1 attack
to the merchant ship unless the crew and passengers were
first placed in safety, even although the ship had refused
to stop on being 'varned? Read literally, this "~ould be
the effect of the rule."
Senator Lodge said: "The rules laid down by Mr.
Root, especially in Resolution I, were elementary. Any-
one who had read a textbook of international law knew
them." (Ibid. p. 620.)
30 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

Mr. Hughes said:

Such a declaration as the one proposed in the first resolution
would go to the whole \vorld as an indication that, while the
committee could not agree on such limitation, there was no dis-
agreement on the question that submarines should never be used
contrary to the principles of law governing war. The adoption of
the resolution might, furthermore, avoid misunderstanding on the
part of those who were looking to the conference with great hope.
It certainly could not be considered as a vain declaration, after
the experiences with submarines which the powers there repre-
sented had had and the feelings engendered by those experiences,
to declare in the most precise terms that the rules of international
la'v should be observed. He believed that such a declaration
would be of the greatest value. (Ibid. p. 636.)
When the drafting subcommittee reported on January
5 on the Resolutions I and II, which subsequently became
Articles I and II o£ the treaty, Mr. Root stated that-
the subcommittee had agreed unanilnously on these two resolu-
tions, but that Senator Schanzer had requested that the following
entries be made in the minutes of the subcommittee (regarding
Resolution I) :
"It is declared that the meaning of article 2 is as follo,vs:
Submarines have the same obligations and the same rights as
surface craft."
And:
"With regard to the third paragraph of article 1, it is under-
stood that a distinction is made between the deliberate destruc-
tion of a merchant vessel and the destruction which may result
from a lawful attack in accordance with the rules of the second
paragraph. If a \var vessel, under the circumstances prescribed
in paragraph 2 of article 1, lawfully attacks a merchant vessel, it
can not be held that the war vessel, before attacking, should put
the crew and passengers of the merchant vessel in safety."
(Ibid., p. 686.)
Senator Schanzer stated, in addition, that the Italian delega-
tion understood the term· "merchant vessel" in the resolution to
refer to unarmed merchant vessels. (Ibid., p. 688.)
As Mr. Root had stated o£ this first article: " The first
was a declaration o£ existing law and created nothing,
merely certifying to what existed." (Ibid, p. 640), and
as Sir John Salmond, also a distinguished jurist, has said
he did not find the resolutions " free from a1nbiguities,"
 DIFFERENCES OF OPINION 31
and as the Japanese delegation, as well as the Italian, had
raised questions, there might be proper room for doubt
as to "~hether the first resolution clearly stated the exist-
ing law·.
There 'vas also a difference o£ opinion between Senator
Schanzer and Lord Lee as to armed merchant vessels.
Lord Lee said he would now develop his second point. He was
not sure if he had un(lerstoocl Senator Schanzer to say that
the Italian delegation only accepted Resolution I on condition
of a drastic change .in international law under which merchant-
men would not have the right to be anned against attack from
any quarter. The anning of merchant ships was not a purely
British practice; it was recognized in the Italian Code of 1877,
which laid down that a merchant ship \Ybich was attacked might
be ordered to defend itself and even to seize the enemy. He did
not SUJ1pose that Senator Scbanzer proposed to destroy the
privilege allowed the merchantmen to defend themselves.
Senator Scbanzer said that be would like to observe, with re-
spect to what Lord Lee bad said, that a limitation of the arma-
ment of auxiliary vessels bad already been fixed. It bad been
agreed that they might not carry guns of more than 8-inch caliber.
No rules, however, bad been established governing the principles
to be applied to merchant vessels, nor had they been forbidden
to carry armament above a certain caliber. This omission might
be dangerous, and, even change their character. There were mer-
chant vessels of 45,000 tons which n1ight carry armament even
heavier than 8 inches. 'Vere these merchant vessels or not?
The committee bad established that a submarine should not
attack a merchant vessel except in conformity with a resolution
which bad been adopted. Yet a merchant ship with guns was a
war vessel. Might not a cruiser attack such a vessel? This
was a point which Senator Scbanzer believed should be cleared
up. He said that be could not agree that a merchant vessel,
even one armed with 6-inch guns, bad rights which a surface
cruiser must respect. It was abned to lay down rules for the
advantage of merchant vessels, not of vessels of war. He said
that be felt that a declaration was necessary concerning this
matter.
Lord Lee said be thought the difference between Senator
Scbanzer and himself was Hot really so great as appeared. Sen-
ator Scbanzer appeared to him, perhaps, to have confused two
things. It had been considered absurd to limit the armament of
light cruisers and not to impose any lin1itation on the armament
of merchant ships. When this question, which was a purely
32 LONDON NAVAL T'REATY, ART. 22, AND SUBMARINES

technical one, came to be discussed he would be willing to apply

the principle that the anneu merchant cruiser must not be more
powerful than the light cruiser. He understood, however, that
Senator Schanzer had said that merchant ships must not be
arn1ed at all. That would involve an alteration of international
law which the British En1pire delegation could not possibly
accept.
Senator Schanzer said he did not deny that under the existing
rules of international law a merchant vessel might properly carry
a limited armament for defensive purposes, but he wished to say
that the Italian interpretation of the term "merchant vessel"
took into account this lilnitation. He therefore repeated that
the Italian interpretation was in accord with his preceding
declaration and with the existing rules of international law.
The chairman stated that he supposed that this subject, which
presented endless opportunities for exposition, might be left with
the suggestion that under this resolution merchant vessels re-
mained as they now stood under the existing rules of law, with
all their rights and obligations; that the resolution then under-
took to state what might be done by submarines in relation to
merchant vessels thus placed. The chairman thought it hardly
necessary that the con1mittee should enter into a discussion of
the question. Although he had no desire to preclude discussion
of any sort, yet he hardly thought it necessary to enter into a
review of all the rules of international law :1s to merchant vessels
and their rights and obligations. ;He assumed that all the repre-
sentatives present accepted the proposition that merchant vessels,
as merchant vessels-a category well known-stood where they
were under the la'\v, and that this resolution defined the duties
of submarines with respect to them.
The chairman thereupon put Resolution I to vote.
The chairman assented on behalf of the United States.
lVIr. Balfour assented for the British Empire.
~fr. Sarraut said that the French delegation '\Vould give its
full adherence to Resolution I, but that an interesting discussion
had just taken place, the results of which he had not quite
understood. He suggested that if Senator Schanzer's statements
were not attached to the resolutions they should be recorded in
the minutes.
The chairman replied that the question was on the adoption of
of the resolution and asked whether France assented.
l\ir. Sarraut replied that it did.
Senator Schanzer, speaking for Italy, and l\:Ir. Hanihara, speak-
ing for Japan, assented.
The chairman stated that Resolution I was unanimously
adopted. (Ibid., p. 690-694.)
 SUBMARINE AND PIRACY 33
By Article II all other civilized powers were invited
to assent to the rules of Article I as being a statement of
established law, so that "there may be a clear public
understanding throughout the world of the standards of
conduct by 'vhich the public opinion of the world is to
pass judgment upon future belligerents."
In speaking of Article III, which makes violation of
existing law piracy, Mr. Root said: "They were not mak-
ing law, they were making a declaration regarding ex-
isting law, and that necessitated no lin1itation at all to
the po,Yers that 'vere here." (Ibid., p. 720.) It is diffi-
cult to determine under 'vhat authority five powers, how-
eYer hu1nane, 1night ha Ye presumed to decide for other
powers the penalties for acts when they have not been
consulted upon the formulation of the law defining these
acts.
In Yoting on Article III-
Senator Schanzer said that he accepted in the nan1e of the
Italian delegation the ne\v formula as worke(1 out by lVIr. Root
and Sir John Salmond, which gives entire satisfaction, as its
wording had the effect of extending the sanctions of trial and
punish1nent to all persons violating the rules of law laid down
in the first resolution, without distinction.
The chairman asked \Yhether any further discussions were de-
sired. No reply being n1ade, he said that the matter would be
put to vote, whereupon the delegations of the United States of
America, the British Empire, France, and Italy assented.
Mr. I-Ianihara said that before speaking for the Japanese dele-
gation he would like to be enlightened as to the exact meaning of
the words "punislunent as if for an act of piracy."
The chairman said he assumed the phrase to mean that viola-
tion of the hnvs of \Yar, thus declared, should be treated as
amounting to an act of piracy and that the person violating the
laws would be subject to puni~hment accordingly.
1\Ir. Root interposed that such a person would not be subject to
the limitations of territorial jurisdiction. The peculiarity about
piracy was that, though the act was done on the high seas and
not under the jurisdiction of any particular country, nevertheless
it could be punished in any country. That was the really impor-
tant point. (Ibid., p. 728.)
34 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

In presenting the treaty in its final form to the fifth

plenary session, February 1, 1922, Mr. Root said:
You will observe that this treaty does not undertake to codify
international law in respect of visit, search, or seizure of
merchant vessels. 'Vhat it does undertake to do is to state the
most ilnportant and effective provisions of the law of nations in
regard to the treatment of merchant vessels by belligerent war-
ships, and to declare that submarines are under no circumstances
exe1npt from these humane rules for the protection of the life of ·
innocent noncombatants.
It undertakes further to stigmatize violations of these rules,
and the doing to death of women and children and noncombatants
by the wanton destruction of merchant vessels upon which they
are passengers, as a violation of the laws of war which, as be-
tween these five great powers and all other civilized nations who
shall give their adherence thereto, shall be henceforth punished
as an act of piracy. (Ibid., p. 268.)
The statement that the following is an established part
o£ international law, viz, "A merchant vessel must be
ordered to submit to visit and search to determine its
character before it can be seized " is not in accord 'vi th
the facts at present or prior to the war.
Certainly this 'vas not the rule in regard to ene1ny Iner-
chant vessels which might be seized as such 'vithout
orders to submit to visit and search. The Japanese and
other rules prescribe: "All enemy yessels shall be cap-
tured." Visit and s.earch of enemy merchant vessels 'vas
to avoid violation of any neutral rights.
A neutral merchant vessel might be seized at any tirne
outside of neutral jurisdiction, but in such case the state
n1aking the seizure assumed all risk, and visit and search
'vas to avoid risk. I£ a neutral merchant vessel 'vas
known to the belligerent to have violated blockade, car-
ried contraband, or to have engaged in unneutral service,
it could be seized 'vithout being ordered to subn1it to
visit and search.
This visit and search may not be solely to determine
the character of the ship, for this may be known already,
but to determine its destination, cargo, etc.
 VISIT AND SEARCH 35
In 1799, Sir William Scott, in the case of the M arria,
said:
That the right of visiting and searching merchant ships upon
the high seas, whatever be the ships, whatever be the cargoes,
whatever be the destinations, is an incontestible right of the
lawfully commissioned cruisers of a belligerent nation. (1, C.
Robinson's Admiralty Reports, 340.)
This statement did not mean that the merchant vessel
had a right to demand that it should be ordered to submit
to visit and search before seizure, but that the belligerent
cruiser had a right to visit and search, and the belligerent
cruiser also had, and has often exercised, the right of
seizure without visit and search. The visit and search
has been resorted to to avoid liability of making an il-
legal seizure. If a cruiser cares to take the.risk of illegal
seizure it may do so at any time, without visit and search,
under the law existing in 1922 and until such treaty
should be generally ratified.
The next clause provides:
A merchant vessel must not be attacked unless it refuse to
submit to visit and search after warning, or to proceed as directed
after seizure. (Conference on Limitation of Arman1ent, p. 1608.)
The French version of this is equally official with the
English, but the idea is more nearly in accord with the
law:
Un navire de commerce ne peut etre attaque que si, apres
mise en demeure, il refuse de s'arreter pour se soumettre a la
visite et a la perquisition, ou si, apres saisie, il refuse de suivre
la route qui lui est indiquee.
It is, however, not a " refusal " to come· to for visit
and search, but merely a failure to come to that renders
the vessel liable under nearly all regulations.
The word " refuse " is, however, a fortunate one, as
_under this phraseology liability under the Kirkwall prac-
tice would not easily arise. A vessel might be directed
to proceed to Kirkwall, or some other port, and might
not " refuse," but might after a ti1ne depart from the
36 LONDON NAVAL TR.EATY, ART. 22, AND SUBMARINES

route indicated. As this clause, " or to proceed as di-

rectecl a:£ter seizure," did not occur in the original dra:£t
it may be interred that it was introduced to gain recog-
nition o:£ an extension o:£ the l(irkwall practice, ·which
-certainly 'vas not, and is not, " an established part o:£
international law." I:£ the seizing vessel accompanies
the seized merchant vessel or puts a prize crew on board,
then the law is as stated.
The paragraph stating: "A n1erchant vessel n1ust not
be destroyed unless the crew and passengers have been
first placed in safety," manifestly is not intended·to be a
general prohibition, because the preceding paragraph
per1nits by implication destruction under certain condi-
tions.
This proposed treaty o:£ 1921-22 in relation to the use
Qt submarines and noxious gases in ·warfare :£ailed o:£
adoption and the regulation o:£ the use o:£ submarines was
le:£t :£or later determination.
An~erican advisory· committee, Washington Conference
on the Limitation of Ar1na1nent.-A subcommittee in-
vestigating and n1aking a report in regard to submarines
to the An1erican advisory com1nittee at the Washington
Conference, 1921, said:
The rules of maritime warfare require a naval vessel desiring
to inYestigate a merchant ship first to warn her by firing a shot
aeross her bow, or in other ways, and then proceed with the ex-
amination of her character, make the decision in regard to her
seizure, place a prize crew on her, and, except under certain ex-
ceptionable circumstances, bring her into port, where she may be
conclen1necl by ~ prize court. * * *
Assu1ning that a merchant ship may be halted by a submarine
in a legithnate fashion, it becomes difficult because of limited
personnel for the sub1narine to complete the inspection, place a
prize crow on board, and bring her into port. It is also difficult
for her to ta.ke the passengers and crew of a large prize on board
should circtunstances warrant sip.king the -ves~el. Ilowever, these
remarks· are applicable to sn1all surface crafts as well. (Confer-
ence ou the Limitation of Annament, p. 494.)
Inability to alford place of safety.-1\fanifestly the ar-
gtunent that a vessel o:£ war because 'veak should ha Ye
 SUMMONS 37
special belligerent rights as regards n~utrals or opposing
belligerents has little 'veight. Professor Hyde, in refer-
ring to submarines, has said:
l\Iere incapacity of a na Yal subn1arine to offer a place of refuge
on its own decks does not justify a disregard of the safety of the
persons aboard the enemy merchanbnan which has surrendered
or obeyed a signal to stop. It indicates rather a limitation of the
right to destroy the ship until by some process the safety of its.
occupants has been assured. Should a small surface craft, such,
as a typical destroyer, or a naval vessel even more diminutive,
fall in with an enemy passenger liner having 2,000 persons aboard,
the inability of the former to offer a place of refuge to a Inajor-
ity of those persons, or to spare an adequate prize crew, would
not in itself he deemed to justify the de1nand that the occupants
of the liner take to the boats, or otherwise jeopardize their
safety in order to permit the destruction of the vessel on which
they were carried. The subn1arine is subject to the same duty ..
(2 Hyde, International Law, p. 482.)
Summons.-ln many of the old treaties it is stipulated·
that a visiting vessel shall not come nearer to the visited~
vessel than a cannon shot, though some prescribe half a,
cannon shot. The requiring that the national flag should
be flo,vn 'vhen firing a gun in action was general. These
rules "\Vere developed when the range o:f guns was short,
and the rules ·were not universal though they might be
regarded as general. With the increase in range of
guns, it is not possible to send with safety and conven-
ience a visiting party even half the distance which a shot
may cover and no specified distance is now required ..
The reason for the early precautions have largely passed
'vi th pirates and privateers. While the sun1moning or
affirming gun is often fired, other methods are equally
valid. The purpose of the summoning gun was to 1nake·
known to the summoned vessel that the summoning ves-
sel desired her to come to and there was the implied
threat that force would be used to bring the vessel to if"
the summons was manifestly disregarded and this could·
lawfully be done. Any other method o:f effecting sum-
mons would be equally lawful, as by signal or otherwise,.
38 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

but, o£ course, the summons must be received and must

be understood. I£ certainly received and understood, the
consequences o£ disregarding the summons would be the
same 'vhatever the means o£ communication.
Detention.-The terms capture, seizure, and detention
are not uniformly applied or ~nterpreted. Capture and
seizure are often used interchangeably. In general it is
maintained that a vessel of war should interfere as little
as possible 'vith neutral commerce and that the exercise
o£ visit and search should not be made unnecessarily bur-
densome. I£ on visit and search no good ground for sus-
picion that the vessel is liable to capture is found,
for1nerly it was held that the vessel should be allowed
to proceed.
During the World War it was argued on various
grounds, size, state of sea, danger from submarines,
methods of shipment of cargo, etc., that the visit and
search at the place where the vessel is summoned is not an
adequate safeguard for belligerents. Detention on the
ground of suspicion based on irregular papers or other
evidence arising from the visit and search at the place
where the vessel is brought to has been uniformly ap-
proved, but the adequacy o£ the grounds for suspicion
might be contested. Cases had arisen where vessels were
detained and taken from the place of bringing to when
search had been interrupted by storm, threatened attack
by the enemy, or force majeure.
A son1ewhat extreme interference arose in case of the
Montana in 1915. The statement of the case as reported
in the decision by His Majesty's Commercial Court at
Malta in Prize is as follows :
Action by the Archipelago American Steamship Co., the owners
of the steamship Montatna,, against the commanding officers of
H. M. S. Harrier and H. M. S. Triad, claiming damages for the
detention of their vessel.
On April 15, 1915, the Montana left the Pirreus, having on board
90,000 kilos of common soda consigned to Vourla, in Turkey.
Before accepting the said consignment the master and ship's
 DETENTION 39
agent communicated with the British Legation at Athens and
receiYed an assurance from the British Minister that common
soda was not contraband and might safely be carried to the pro-
posed destination. In the course of her voyage the JJJontana was
stopped by H. ~I. S. Harrier in the Doro Channel and ordered to
l\[udros for exa1nination. The naval authorities at Mudros, hav-
ing no means at their disposal of analyzing the cargo, sent the
Yessel to l\Ialta, 'vhere she arrived on April 22. On April 24
the Government analyst reported that the cargo did not come
within the list of sodiu1n substances included in the schedule of
contraband, and on April 25 the .1liontana was released and given
a clearance certificate for Yourla. On l\iay 4 the vessel, after call-
ing at Chios, was again stopped by H. l\I. S. Triad, but was
allowed to proceed to Vourla after her holds had been sealed,
which prevented the discharge of the cargo. The master of the
Yessel alleged that the conunanding officer of the Triad~ ordered
him to leave Vourla v'lithin 24 hours, but this was denied by the
naval officer in question. (3 Grant, Br. and Col. Prize cases,
p. 340.)
This court decided that "the naval authorities, there-
fore, acted 'vithin their po,vers in detaining the ship and
sending her :for examination to ~1alta."
Later the court states that in regard to sealing the
cargo to prevent discharging at Vourla " it is impossible
to define 'vhich :facts constitute reasonable suspicion,
as they are so multifarious as to r·ender it impossible to
give an exhaustive enumeration o:£ all," and also as to the
contention that the order was against the principles o:£
international law," It does not, however, seem repugnant
to those principles to hold that the right o:£ visit and
search includes that o:f securing such part o:£ the cargo
'vhich may appear suspicious and of pr·eventing its being
discharged as at a given port, without actually seizing it."
'The court added:
Recent developinents in the course of the present war have
clearly shown that it is not possible in all cases to exercise the
right of visit and search in a satisfactory way owing to the ease
with which contraband may be concealed in bales, passengers'
luggage, and other receptacles, esp(lcially in large ships, and
owing to the danger from enemy submarines.
40 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

rfhe claim for da1nages 1nade by the OWners of the-

i}{ ontana was. according to the court, not Pll bstantiated.
Oapture.-Just ""'hat may be necessary to constitute
capture may at times be difficult to detern1ine. The·
British judgment by the judicial committee of the Privy
Council in the case of the Pell/w1or1n, 'vhich in 1917 'vith
other ships had passed into Dutch territorial waters be-
fore they were boarded, gives an opinion as to the nature
c)i capture, and the discussion is extended and significant:
In principle it \Vould seem that ·capture consists in con1pelling
the vessel captured to conform to the captor's will. When that
is done, deditio is complete, even although there may be on the·
part of the prize an i:q.tention to seize an opportunity of escaping·
should it present itself. Submission must be judged by action, or
by abstention from action; it can not depend on mere intention,
although proof of actual intention to evade capture may be evi-
dence that acts in thmnselves presenting an appearance of sub-
mission were ambiguous and did not result in a completed cap-
ture. The conduct neces&ary to establish the fact of capture-
tuay take many forms. No particular formality is necessary-
La Esperanz·a.. (1 Hag. Adm.,· at p. 91.) A ship may be truly
captured, although she is neither fired on nor boarded-The Ed-
'lcara and },fary-if, for example, she is constrained to lead the·
way for the capturing vessel under orders, or to follow her lead,.
or directs her course to a port or other destination, as c01nmanded.
If she has to be boarded, she is at any rate taken as prize when
resistance has co1npletely ceased. It was contended before their
lordships by counsel for the Crown that hauling down the flag
was conclusive in the present case, or, at least, was conclusive
when taken in conjunction with stopping the engines as ordered.
It \Vas said to be an unequivocal act of submission, as eloquent
as the words " I surrender" could have been, an act which could
not be qualified by any intention which did not find expres&ion.
in action. This is to press The Rebeckah beyond what it will
bear, for there the facts showed, that after the act of formal.
submission by striking colors there was no discontinuance of
that submission either effectively or at all, whereas Sir 'Villian1
Scott intin1ates that, if any attempt had been made to defeat the·
surrender he would not have treated the deditio as complete until
possession was actually taken. It is true that by tradition, when
ships are engaged in combat, striking the colors is an accepted.
sign of surrender, but to do so without also ceasing resistancE
is to invite and to justify further severe 1neasures by the victori-
 CAPTURE 41
ous combatant. In the case of a merchantinan, where the tradi-
tions of conunissioned men-of-war are not of equal application,
the hauling down of the flag, like any other sign or act of submis-
sion, is to be teS'ted by inquiring whether the prize has submitted
to the captor's will. \Vhat a combatant seeks to intimate by acts
signifying surrender is first and foremost that he ceases to fight
and submits to be tnken pri&oner; what a merchantman intimates
is that she n1eans to do as she is told, and that the chattel prop-
erty may be captured in prize, although the sea1nen in charge of
it are not made prisoners or placed under personal restraint. In
the present case, according to evidence given for the Crown, the
hauling do\vn of their flag& by the German stea1ners was accom·
panied by a change of course toward the land; and as it preceded
any British signal by flag or cannon shot, it was in the circuin-
stances anything but a clear intilnation of submission. On the
contrary, it is obYious that the Gernu111 ships continued to move
toward and &hortly crossed the 3-nllle lilnit, and that this was
neither inadYertent nor was incapable of being prevented. They
had. not abandoned the intention of escaping, nor had they ar-
rested their n1oYe1nent toward the region of safety. They sub-
mitted just so far as to minimize the risk of being fired on; theJ
disobeyed orders just so far as to insure that the &hips would o1
thernselYes glide or be carried over the line. They were already
headiug toward the territorial waters and desired to obtain what-
ever adyantage might be deriYable fro1n getting within them.
This was why they did not obey the order to alter course to the
westward. It is &ho\vn that they could not have done so. Under
these circumstan·ces their lordships see no reason to differ from
Lord Sterndale's conclusion that the vessels were not captured
until tlwy had entered Dutch waters, for up to that time they
were endea Yo ring to e&cape and were resisting or evadiug sub-
mission to the captor's will. (3 Grant, Br. and Col. Prize Cases,
p. 1053.)
Classes of ships.-A review of the discussion on priva-
teering, exemption of private property at sea, conversion
of merchant vessels into vessels of war, armed merchant
vessels, subsidized vessels, national merchant marine and
kindred subjects sho,vs the need of a redefinition of some
of these classes. This review also shows that the line
should for purposes of 'var and for observance of neu-
trality be on the basis of combatancy. If a vessel is a
combatant vessel it should be treated as such both by
6957 4-31--4
42 LONDON NAVAL THEATY, ART. 22, AND SUBMARINES

belligerent and by neutral. While the distinction between

armament for defensive and offensive purposes vvas os-
tensibly made in the vVor ld War, in most cases the prac-
tice reduced to the exercise of judgment by the com-
mander of the armed vessel as to his ability to sink or
defeat an approaching vessel. The result vvas unre-
stricted maritime warfare with disregard of belligerent
and neutral rights.
The desideratum seems to be a clear distinction between
combatant and nonco1nbatant vessels. Such a distinction
is necessary both for neutral and belligerent. Clearly a
vessel of belligerent nationality should be either non-
combatant or combatant if a neutral is to maintain an
unquestioned neutrality. The best interests of the bel-
ligerents. vvould as between the1nselves be likewise served
by such definition. Combatant vessels vvould be liable
to attack vvithout warning; noncombatant vessels would
be liable only to visit and search and capture. Noncom-
batant vessels could be sunk under exceptional circum-
stances and after personnel had been placed in safety;
noncombatant vessels belonging to the state would be
treated as public property.
Referring to The Hague Convention in ~·egard to days
of grace in which the term "batiments de guerre" is used
J. A. Hall says:
The 'vords "batiments. de guerre" are probably intended here
to cover only fighting ships, and do not include auxiliary vessels
not employed in acts of aggression. But even so, it is impossible
to say in general terms what details of construction should be
taken ·to indicate that the vessel is intended to be converted into
a ship of war, for most fast vessels, such as mail steamers a.nd
large liners, are easily converted into formidable commerce de-
stroyers. Indeed, the difficulty will be almost insoluble in the
future, if the practice of putting special construction into mer-
chant ships to facilitate their defensive armament in time of war
becon1es general. Difficulties may also arise in the case of vessels
of smaller size, such as trawlers, which play so important a role
in all mining operations. It is not, however, the ca.pa.city of the
vessel to be converted, but the intention by the Government to
n1ake suC'h conversion to war uses, which is the test. Each case
 CONVERSION 43
will have to be decided on that very vague and unsatisfactory
ground, but the fact that the vessel is contained in the navy list
of its country or is in receipt of a government subsidy should cer-
ta.inly be sufficient proof of intention to warrant condemnation.
Fortunately these problems will seldOin confront the naval officer,
but will be left for the prize court to decide. For if no days of
grace are granted all enemy vessels should be captured and sent
in for prize proceedings, for if not liable to condemnation they are
at any rate subject to detention for the duration of the war. If,
on the other hand, there is a period of grace, the problem can
equally well be preYeuted fro1n harassing the naval officer by
some such method as that adopted in the British Order in Council
set out aboYe, namely, the exclusion from the privilege of all ves-
sels over a certain size or speed or otherwise specially suitable for
conversion into ships of war.
Apart from this question of conversion, it is lawful for a naval
officer, exercising the right of visit and search in time of war, to
capture and send in for conden1nation as prize every enemy mer-
chant ship which he n1ay meet with outside neutral territorial
waters after the expiration of any days of grace his government
may haye granted, or, if none are granted, immediately after the
declaration of war, unless he is satisfied either that she left her
last port of call before the existence of the war could be known
there and is still ignorant of it, or that she had sailed from a
port of her enemy with a passport and has not willfully made
any material deviation from the course there laid down for her.
If she has failed to comply with the terms of the passport with-
out a reasonable excuse, she should be seized. The first excep-
tion, that of ignorance of the war, did not apply in the Great War,
as already described, owing to the two belligerents, Germany and
Russia, having refused to agree to it at The Hague Conference.
In any war in which the convention was fully in force, unless it
was decided to exercise the minor right of detention under ar-
ticle 3, an officer visiting an enemy ship which was ignorant of
the war, should enter in· the ship's log the fact of the visit and
of the state of war, specifying the date and place of the visit,
together with the names of his ship and her commanding officer,
signing the entry with his own name and rank. The visited ves-
sel will then be liable to be seized as prize, if she thereafter en-
ters or atteinpts to enter a port of her enemy, for she is no longer
in a position to plead ignorance and should make for a place of
safety. If her destination is a port of her own country, it may be
necessary, owing to a blockade, to divert her to another port, or
for other military reasons to prescribe her route, in which case
any such orders should be also entered in her log. She will then
44 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

be liable to capture and condemnation as prize if she is subse-

quently discovered to be1 acting in contravention of such orders
without reasonable exeuse. (J. A. IIall, The Law of Naval 'Yar-
fare, p. 36.)
Hall also says:
Hostilities are mainly conducted by the regular naYy of a
state, vessels built and equipped simply and solely for the pur-
poses of war. They fly a distinctive flag-in the British Navy
the white ensign. r~rhey alone are entitled to attack the ene1ny,
to exercise the right of visit and search, or to take prizes. These
are the fighting ships. Other vessels, such as transports, colliers,
oil-fuel vessels, tugs, and so forth, required for the numerous sub-
sidiary nonmilitary services which the w·orking of a great navy de-
Inands, constitute the second class, known in the British Navy as
fleet auxiliaries. "'\Vhether they have been merely taken O\er on
charter from the n1erchant service for the purposes of the 'Y~u· or
have always been in the sole ownership and employment of the
naval authorities, they are not permitted to engage in acts of war,
nor do they fly the flag of a fighting ship. Whether they fly a
special flag or the flag of their n1erchant service the rights and
duties of their position re1nain the same; in regard to the enen1y
they are in the position of merchant ships; that is to say, thc:-y
may be captured or destroyed and may resist if attacked, but 111ns::
not then1selves begin an attack, but in regard to neutrals and the
use of their ports and waters they are in the same position as the
fighting ships.· (Ibid. p. 48.)
This right to exercise forcible resistance must clearly come
into operation the moment the hostile warship proceeds to take
any step to,vard effecting capture; that is, approaches with a
view to exercising the right of visit and search or to bringing
her guns to bear. It is perfectly lawful to presume her hostile
intent without waiting for her to announce it formally by signal
or by firing a warning shot. This is as true with regard to hostile
subn1arine as to surface vessels, especially if they are notoriously
in the habit of indulging in the illegal practice of torpedoing all
merchant vessels at sight, which was the policy adopted by Ger-
man warships of this class during the Great War. (Ibid. p. 54.)
State control of ship·ping.-Subsidies and other special
1neasures have been resorted to by states desiring to con-
trol merchant shipping. These have developed accord-
ing to the supposed interests of the states concerned ..
Sometimes mercantile interests, sometimes political plans,.
 STATE CONTROL OF SHIPPING 45
and ~o1netin1es 'var exigencies have deter1ninecl the atti-
tude of states to,Yard the 1nercantile marine. 'fhe World
"'\Y'ar dislocated the conunerce of the 'vorld to such an
extent that unusual Ineasures 'vere undertaken, and at-
teinpts to justify the 1neasures so1neti1nes strained the
ordinary processes of international negotiation and led
to action ''"hich n1ade 'yorld conditions even 1nore un-
stable.
Control of shipping by the United s·tates.-By the
act of June 15~ 1917, the President of the United States
''"as authorized:
(c) To purchase, requisition, or take over the title to, or the
posses~ion of, for use or operation by the United States, any ship
now constructed or in process of construction or hereafter con-
structell, or any part thereof, or charter of such ship. ( 40 U. S.
Stat., p. 182.)
This "·as an act "to supply urgent deficiencies in ap-
propriations for ~Iilitary and Naval Establishments on
account of "·ar expenses."
'I'he act also provides:
The word '"'ship" shall include any boat, vessel, or submarine
and the parts thereof.
'fhe san1e act 1nade provision for the operation of ships
thus acquired by agencies other than the Army and Navy
Deparhnents. Ships "·ere taken over by the President
under this authorization and at times the United States
represented by the lTnited States Shipping Board became
'' the possessor " of the vessel.
Certificate of requisition.-Tbe docu1nentary evidence
is sho"·n in the certificate o:f requisition. 1
0 lz.arters.-Requisition charters n1ade provision for
con1pensation and for the operation of _these vessels un-
der tin1e charters if they 'vere taken over by the Ship-
ping Board or under certain other conditions for opera-
tion under the bare-boat form.
The Sl~ipping Bomrd.-The United States Shipping
Board, instituted in 1916 to build up a merchant marine
See footnote on page 46.
46 LONDON NAVAL T'REATY, ART. 22, AND SUBMARINES

sTAT~~ OF A I"~"~ I·=~I

~\~€-0 tvr~IYtc
\) DEPARTMENT OF COMMERCE ..<J
BUREAU OF NAVIGATION

Oitrtifiratt nf 1!\tlJUisitinu
)n 1111l'lltlll!t of l~r follaartll!l11rJUiamalilln af ~r 11rretllrnt of~· llntlrb &Iaiii. prOIIIUiglltb •arr~ 20. 1918.

By the President of the United States of America:

A PROCLAMATION.
Whereas, the law and practic~ of nations •=rds to • beDlgerent pow~r the right in times ol militory eiJe-ency and
lor purposes essenti•l to the prosecution of war,to take over and utilize neutral vessels lying within its jurisdiction;
+++++++++
~.!:'.t j And whereas the oct ol Congressol }Wle 15,1917, entitled "An oct m•king •ppropriations to supply urgent deficiencies lll
•ppropriotions lor the Milit•ry and Naval Est•blishments on account ol wor expenses lor the liscal year endin&' June thirtieth,
[
•• ;.-;.. ~~':~~~~~~~h~n;/,:j~:~~~;,ano1 :he ~~i~~est.it':l';"~~ec~~~;r~:' b~~h~U~~~t~':'~~ to take over the possession
·Now therefore, I, Woodrow Wilson, President ofth~ United St•tcs of America, in •ccordan~ with internotion•l l•w •nd
pr•ctice •nd by virtue ol the act of Congress alores•id, and •s Commander in Chief of th~ Army •nd Navy of the United
: States. do hereby lind and proclaim that the imperotive military needs of th~ United States require the immedl.te utilization
1 ~ ~;:::::~; ~~ ;1~hNa~dt~r:!J~~r~~~::n i'e~Ji~h;hett~~~dri~:!swth!e;~~:~~U<t:~l~t:'~Pj~ !nd~u~~·~:;:~:~lhN!~hc::ckm:';~.;.~~
:i~ ~t!fi 'b. ~~,!,sa.d~~pping
· the United St•tes
1
~i;;ed~t~~~~~!~:dcb;'ti,~e~;~hD~;.k:~u~~oJ' ~e t~i:dr s~::s~~;~pes:rd~:~,:Y<tvd:~::it~,~~:n~~=~~
Board shall make to the owners thereof lull compensation, in occord•nce with the principles ol intem•tion•l l•w.
: In testimony whereof, I have hereunto set .ny hand •nd caused th~ seal of the United States to be •llil<ed.
·i
1
Done In the District of Columbia, this twentieth doy ol M.arch, in the year of our Lord one thousond nine hundred and ele-hteen, •nd of
the lnd~dence ol the United Stotes of America the one hundred and lorty·second.
<! By the President: • WOODROW Wll.SON.
ROBERT LANSING, S.m!•.y •f Slu••

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 OFFICIAL CHARTER 47
to meet American needs on the outbreak of vvar, beca1ne
an agency for organizing the shipping to promote the
ends of the war. As Prof. J. R. Smith, in The Influence
of vVar on Shipping, says: "The official mind replaces
supply and demand." Ships ·were allocated as to routes
and employment. The taking over was on the outbreak
of 'var for 'var purposes and the ships 'vere run for war
ends.
Ships on time aharter.-While the time charter pro-
vides that a vessel operated by the owner for the United
States is not a public ship but shall be subject to the laws
governing merchant ships, this provision relates to do-
mestic rules and might be acceptable to neutrals. This
provision 'vould not determine the attitude of a belliger-
ent to,vard a vessel requisitioned by the United States
and under a time charter, the first provision of which is
that " the stea1nship shall remain in the service of the
United States.'' The United States Shipping Board had
large grants from the Public Treasury for the mainte-
nance of these ships.
Subsidies, bounties, subventions, in one and another
for1n, have been comn1on and have placed vessels under
obligation to the government with a possibility of control.
It had been generally 1naintained that until the control
had been assumed the v-essel vvould be regarded as a pri ·
vate vessel, unless there was evidence to the contrary
other than the existence of a subsidy in time of peace.
Neutral attitud·e.-A neutral state is not concerned with
the public or private ovvnershi p of merchant vessels fly-
ing merchant flags of a belligerent state. It is, ho,vever,
t'esponsible for· the treat1nent which it accords to vessels
which are adapted to carry on hostilities.
B ellig1evrent attitude.-The belligerents are concerned
both as to ownership and as to character of vessels. If
a vessel is a public vessel of an enemy and armed it may
be attacked without warning because it would be 'vithin
the category of vessels of war. If it is an unar1ned pub-
lic vessel (not of an exempt class, such as hospital ships) ,
48 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

it Inay like,vise be attacked 'vithout 'varning if it is

engaged in n1ilitary operations as scouting, etc. The
belligerent n1ust for his o'vn safety kno'v 'vhether a ves-
sel of any nationality is concerned in the 'Yar.
Shipping Board vessels.-There has been 1nuch dis-
cussion as to the status of vessels of the United" States
Shipping Board during "'ar. This question 'Yas dis-
cussed in the opinion of the United States and Ger1nan
~1ixec1 Claims Comn1ission in 1924. (Decisions and
Opinions, p. 75; see also 1923 N. vV. C.'- International
I.Ja'v Decisions, p. 189.)
The Shipping Board was established in pursuance of the act
of the Congress of the United States of September 7, 1916 (39
Statutes at Large, 728), entitled "An act to establish a United
States Shipping Board for the purpose of encouraging, developing,
and creating a naval auxiliary and naval reserve and a merchant
n1arine to meet the requirements of the commerce of the United
States with its Territories and possessions and with foreign
countries; to regulate carriers by water engaged in the foreign
and interstate commerce of the United States, and for other
purposes." The act as amended provided that the members of the
board should be appointed by the President subject to confirma-
tion by the Senate; that they should be selected with due regard
for the efficient discharge of the duties imposed on them by the
act; that two should be appointed from States touching the
Pacific Ocean, two from States touching the Atlantic Ocean, one
from States touching the Gulf of Mexico, one from States touch-
ing the Great . Lakes, and one from the interior, but that not
n1ore than one should be appointed from the same State and not
more than four from the same political party. All employees of
the board were selected from lists supplied by the Civil Service
Com1nission and in accordance with the civil sen·ice law. The
board was authorized to have constructed and equipped, as well
as " to purchase, lease, or charter, vessels suita.ble, a.s far as the
oonuneroial requirements of the m,arine trade of the United
States 1nay permit, for use as naval auxiliaries or Army trans-
ports, or for other na Yal or 1nilitary purposes." * * * The
board Y\·as authorized to create a corporation with a capital stock
of not to exceed $50,000,000 " for the purchase, construction,
equipment, lease, charter, maintenance, and operation of nwrchant
vessels in the oom1neroe of the Unrited States." In pursuance of
this latter provision the United States Shipping Board Emer-
 SHIPPING BOARD VESSELS 49
gency Fleet Corporation (sometimes hereinafter referred to as
Ineet Corporation) was organized under the laws of the Dist_rict
of Columbia with a capital stock of $50,000,000, all fully paid and
all held and owned by the United States save the qualifying
shares of the trustees. Under the terms of the act, this corpora-
tion could not engage in the operation of vessels owned- or con-
trolled by it unless the board should be unable to contract with
citizens of the United States for the purchase or operation there-
of. * * * The act taken in its entirety indicates that the
controlling purpose of the Congress was to promote the develop-
Dlent of an American merchant 1narine and also " a.s far as the
aomnwrcial reqttire'lnents of the 1narine trade of the Uni-ted Sta.tes
n~ay perm,it" provide vessels susceptible of "use as naval auxili-
aries or Arn1y transports, or for other naval or military pur-
poses." * * *
Following A1nerica's entrance into the war on April 6, 1917,
Congress through the enactment of seYeral statutes clothed the
President of the United States with broad powers, including the
taking oYer of title or possession by purchase or requisition of
constructed Yessels or parts thereof or charters therein and the
operation, Inanageinent, and disposition of such vessels and all
other Yessels theretofore or thereafter acquired by the United
States. * * * Under the requisition charter it 'vas expressly
stipulated that the Yessel " shall not ha1i e the status of a publio
ship, and shall be subject to all laws and regulations governing
nwrchant vessels * * * \Vhen, however, the requisitioned ves-
sel is engaged in the sc1·vicc of the 1Va1· or Navy Depa1·tment, the
vessel shan have the status of a public shi'p, and * * .,. the
Inasters, officers, and crew shall become the immediate employees
and agents of the United States, with all the rights and duties
of such, the Yessel passing completely into the possession and the
n1aster, officers, and crew absolutely under the control of the
United States." At another point in the requisition charter it was
stipulated that the 1naster "shall be the agent of the owner in all
matters respecting the management, handling, and navigation of
the vessel, exeept 'When the vessel becontes a public ship." * * *
Construing the shipping act, the ExecutiYe orders of the Presi-
dent, and the proYisions of an operating agreen1ent similar to that
hereinbefore described, the Supreme Court of the United States
held a vessel O'Wned by tbe Fleet Corporation but operated by an
American national as an agent of the Shipping Board was a Iner-
chant vessel and subject to libel in admiralty for the consequences
of a collision. It is apparent that a vessel either owned or requisi-
tioned by the Shippnig Board or Fleet Corporation and operated
by an agent of the United States under such an operating or man-
50 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

aging agreement as hereinbefore described was a merchantman

.and in no sense impressed with a military character.
The Mixed Commission's opinion was that the simple
arming and manning by a gun crew would not convert
a 1nerchant vessel into "naval and military works or ma-
terials" as that phrase \vas used in the tteaty of Versail-
les, but this opinion was not aimed at determining the
status of such vessels in other respects. Indeed in this
san1e opinion, in considering the case of the steamship
John G. JJ[ cOulloug'h, requisitioned by the Shipping
Board and turned over to the \V ar Department and oper-
ated under its orders, it \Vas said:
She possessed every indicia of a military character save that
she \Vas not licensed to be engaged in offensive warfare against
~memy ships. Offensive operations on the seas was not her func~
tion. The fact that the legaJ title to her had not vested in the
United States is wholly immaterial. She was in the possession
of the United States. It had the right against all the world to
hold, use, and operate her and was in fact operating her through
its 'Var Department by a n1aster and crew employed by and sub-
ject in every respect to the orders of the 'Var Department. She
was actively perfonning a service for the Anny on the fighting
front. She possessed none of the indicia of a n1erchant vessel.
·T he very requisition charter under which she was operating took
pains to declare her a "public ship " and not a merchant vessel
subject to the laws, regulations, and liabilities as such as was
the Lake JJ!onroe. She \vas at the time of her destruction being
utilized for " other * * * military purposes " within the
meaning of that phrase as used in section 5 of the shipping act.
She was in1pressed \Vith a rrtilitary character.
In the technical sense such a vessel had pr'actically been
converted into a vessel which would be in the category of
a public ship impressed \vith a military character.
In the case of Berizzi Bros. Oo. v. Stearmsrh ip Pesarr·o,
decided by the United States Supreme Court in 1926, re-
ferring to the case of Sohooner Exohamge (7 Cranch
116), it \vas said:
It will be perceived that the opinion, although dealing compre~
hensively with the general subject, contains no reference to mer-
-chant ships owned and opera ted by a government. But the omis-
 TREATMENT OF VESSELS 51
sion is not of special significance, for in 1812, when the decision
was given, Inerchant ships were operated only by private owners
ancl there was little thought of governments engaging in such
operations. That came much later.
The decision iu The Exchange, therefore, can not be taken as
excluding Inerchant ships held and used by a government from
the principles there announced. On the contrary, if such ships
come \Yithin those principles, they must be held to have the same
immunity as warships, in the absence of a treaty or statute of
the United States evincing a differeut purpose. No such treaty
or statute bas been brought to our attention.
'Ve think the principles are applicable alike to all ships held
and used by a government for a public purpose, and that when,
for the purpose of advancing the trade of its people or providing
revenue for its treasury, a governn1ent acquires, mans, and oper-
ates ships in the carrying trade they are public ships in the same
sense that warships are. 'Ve know of no international usage
which regards the maintenance and advancement of the economic
welfare of a people in time of peace as auy less a public purpose
than the maintenance and training of a naval force. (271 U. S.
562.)
Treat1nent of vessels.-The classes of public merchant
vessels, ar1ned and unarmed, are comparatively new.
The treahnent of belligerent vessels "\vould logically rest
on the criterion, Are the vessels co1nbatant or noncom-
batant? A belligerent can not legally demand that the
personnel on a combatant vessel be spared. A belligerent
may demand that the personnel on a noncombatant ves-
sel be placed in safety. The question as to whether the
title to a vessel is in a private, in a quasi private person
of ene1ny nationality, or in the enemy state itself is a
matter of n1inor importance, particularly since the na-
tional control of shipping in belligerent countries js
probable in future 'vars. If, ho,vever, the principle of
exemption of private property at sea from capture should
be adopted, the question of title might become important.
Sir Frederick Smith in March, 1917, wrote:
Vessels belonging to the enemy state, and notably warships,
Inay be attacked, captured, or destroyed by a belligerent man-of-
·war anywhere on the high seas or in the territorial waters of
the contending belligerents, at any time and without notice. But
52 LONDON NAVAL TREATY, ART. 22, AND SUBlVIARI:NES

enemy merchantn1en are not to be subjecte<l to such sununary

and drastic treatment.
There are several reasons for such differentiation. In the first
place, enemy n1erchantmen are not con1batants. International
law and practice have long recognized a line of demarcation
between cmnbatants and noncon1batants both in war on land and
in war on sea. (Th~ Destruction of l\Ierchant Ships under
International Law, p. 15.)
Manifestly the sinking 'vithout notice o£ vessels un-
armed and engaged in purely mercantile pursuits, even
though the property o£ an enemy state, might bring
no commensurate military advantage. I£ all publicly
owned vessels w~ere liable, the United States Shipping
Board vessels could probably be sunk 'vithout notice.
Transfer to private ovvnership after outbreak o£ war
would doubtless be held invalid. Many questions would
arise as to vessels partly public owned or subsidized.
G?~ound of suspicion.-TlLe Elve and The Bernisse ''ere
t'vo Dutch steamships engaged in carrying· groundnuts
from Senegal to Rotterdam, a transport a pproYed by the
French Govern1nent, and each consignment "~as accoin-
panied by a sort of permit issued by the French colonial
authorities. 1"hese vessels "~ere stopped by a British
cruiser off the Orkney Islands on ~1ay 20, 1917, and w·ere
ordered to go to l(irkwall, and on each a prize cre'Y of
a.n officer and three men "~as put to see that the order
'vas carried out. The reason given ''as that the Yessels
did not haYe a British permit and that the cargo \\as in
bulk and that "it 'voulcl have been i1npossible to exa1nine
the ships at sea in order to find out 'vhether there ''as
anything hidden under the cargo."
At the time o£ the sending in o£ these Dutch stea1nships
the Order in Council o£ February 16, 1917, ''as in effect:
1. A vessel which is encountered at sea on her way to or frmn
a port in any neutral country affording 1neans of access to the
enemy territory without calling at a port in British or allied terri-
tory shall, until the contrary is esotablished, be deen1ed to be car-
rying goods with an ene1ny destination, or of enen1y origin. and
shall be brought in for examination, and, if necessary, for acljn<li-
cation before the prize court.
 THE ELVE, THE BERNISSE 53
2. Any vessel carrying goods with an enemy destination, or of
enmny origin, shall be liable to capture and condemnation in re-
spect of the carriage of such goods: Prov,ided, That in the case
of any vessel 'Which calls at an appointed British or allied port
for the examination of her cargo, no sentence of conde1nnation
shaH be pronounced in respect only of the carriage of goods of
(luemy origin or destination, and no such presumption as is laid
down in article 1 shall arise.
3. Goods which are found on the exa1nination of any vessel to
be goods of enemy ol'igin or of enemy destination shall be liable to
conde1nna tiou.
4. Nothing in this order shall be clee1necl to affect the liability of
any vessel or goods to capture or conde1nnation independently of
this order. (3 Grant, Br. and Col. Prize Cases, p. 771.)
\Vhile the Yessels ·were en route to J(irkwall The Elve
'yas sunk by a German sub1narine and The B ernisse was
badly cla1naged.
In 1920 the judicial committee of the Privy Council, to
'vhich the case had co1ne on appeal from a judg1nent
against the Crown, said:
As there was in this case no ground whatever proved on which
either ships or cargo could have been condemned as prize, any
more than any ground for detaining them under the Order in
Council, the question re1naining is merely that of reasonable
ground for the action taken. To show such ground the Crown
rely on two points: First, they say that the detention was a
legitimate exercise of the right of search. In this war it has
been agreed that search at sea has been practically impossible,
and sending into port for search has been almost universal. In
this case, further, there was evidence that the search at sea for
contraband hidden under the groundnuts would have been im-
possible. The President, however, has disposed of this point by
saying that even if the officers might have suspected that some-
thing contraband was hidden under the groundnuts; in fact, they
did not do so, and have never said that they did. They- really
only sent the vessels in because there was no green clearance.
This seems a sufficient answer, and it is unnecessary to go further,
but counsel for the respondents do further argue that ever for a
search reasonable ground for suspicion must be shown, and that
where everything i$ in order on the papers, and there is no cir-
cumstance suggesting hidden contraband, even a search on the
spot would be unjustifiable. In strictness this is, of course, cor-
rect; but so little suspicion is required to justify a. ~earch that
54 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

their lordships are not prepared to say that if a boarding officer

were to state that, finding the cargo to be in bulk, he thought that
something might be hidden under it, and therefore directed a
search, bis conduct would be so unreasonable as to subject the
Crown to a liability for damages. (Ibid.)
In referring to the case of the Ostsee, 'vhich arose in
the Crimean War, the judicial committee said:
It was there held that to exempt captors frmn costs and dam-
ages there must be so1ne circumstances connected with the ship or
cargo affording reasonable ground for belief that the ship or
cargo might prove a lawful prize. (Ibid.)
In referring later to this case, approval was given to
the headnote, " That an honest 1nistake occasioned by
an act of government 'viii not relieve captors from lia-
bility to compensate a neutral."
From this deliberate decision of the highest British
judicial authority it is evident that " a reasonable ground
for suspicion must be shown " to render a vessel liable to
search, though just what such ground might be is not
decided.
Bringing in of prize.-Early instructions in regard to
bringing in of prize are reviewed in Situation III of
Naval War College International Law Situations of 1908,
pages 68 to 70.
The Institut de Droit International at the Oxford ses-
sion in 1913 formulated the :following:
ART. 102. Le navire saisi doit etre conduit dans un port de
l'Etat capteur ou dans celue d'une puissance belligerante ailliee,
aussi proche que possible, susceptible d'offrir un abri sur et ayant
des communications faciles a vee le tribunal des prises charge
de statuer sur la capture. Pendant le voyage la prise naviguera
aYec le pavilion et la flamme, insigne des navires 1nilitaries de
l'Etat.
The Instructions issued to the Navy of the United
States in 1917 prescribed in section SO that-
80. Except under extraordinary circumstances, prizes shall be
sent promptly to a port within the jurisdiction of the United
States for adjudication. In general, a prize 1naster 'vith a crew
shall be sent on board the prize for this purpose. If for any
 BRINGING IN PRIZE 55·
reason this is impracticable, a prize may be escorted into port by
the capturing vessel or by another vessel of 'var of the United
States or of an ally. In this exceptional case the prize shall be
directed to lower her flag and to steer according to the orders of
the escorting vessel of war. The prize must obey the instructions
of the escorting vessel, under pain of forcible measures.
Other regulations provide for escort of prize to port
of adjudication. In early cases before prize courts, the
intention of taking the prize had to be proven. The
animus capiendi must be supported by fact. The master
of a merchant vessel may be requested to navigate his
vessel in accordance with certain directions, but the mas-
ter is under no obligations to navigate in such manner.
The consequences of refusal depend upon the adequacy
of the force of the captor and failure to follow instruc-
tions may result in the consequences that follo·w resistance·
to capture.
'Vhile there may be problems arising from bringing
vessels into port for prize proceedings and from bringing·
vessels into port for search, in both cases the responsi-
bil ty rests upon the flag of the state bringing the vessel
in, but the 'vrongful bringing in or detention may give
ground for compensation. Whether certificates, "letters
of assurance," "navicerts," or other documentation at the
port of shipment will be accepted as proof of innocence
in the future, when such pr·oficiency in. evading super-
vision outside neutral jurisdiction has been developed,
as has been sho,vn off the coast of the United States in
circumventing regulations relating to liquor traffic, is
open to question. The wit of man in evading man-Inade·
la'v has usually shown a develop1nent co1nmensurate with
that of the law, and there is al-ways the possibility among·
states that undue interference n1ay provoke effective re-
taliation. This n1ay be specially potent in comn1ercial
relations in time of war·.
When a 1nerchant vessel is under the actual control of
n vessel of 'vat of a belligerent, there is no question as
to the responsibility and liability, whether or not the bel-·
56 LONDON NAVAL TREATY, ART. 22, AND SUBMARINES

Jjgerent vessel has acted in a strictly legal manner. I£

there is a reasonable ground for· taking a vessel into
port, it is usually admitted that there is no liability ex-
cept to use reasonable care in navigation. In the case
of The Elve and The BerniS'se before the British courts.
it was argued " that ever for a search reasonable ground
for suspicion must be shovvn, and that vvhere everything
is in order on the papers, and there is no circu1nstance
suggesting hidden contraband, even a search on the spot
"rould be unjustifiable" (3 Grant, Br. and Col. Prize
Cases, p. 777), and the judicial co1n1nittee o£ the Privy
Council admitted that " in strictness this is, o£ course,
correct; but so little suspicion is requited to justify a
search that their lordships are not prepared to say that
i£ a boarding officer vvere to state that, finding the cargo
to be in bulk, he thought that something might be hidden
under it and therefore dir·eqtecl a search, his conduct
"\vould be so unreasonable as to subject the Cro,vn to a
liability for damages." (Ibid.)
British praotice, 1914-191,5.-At the outbreak o£ the
\Vorld "\Var in 1914, it was expected that the laws o£ vvar
previously recognized 'vould be observed by the belliger-
ents. 0£ this a paper presented to the British Parlia-
ment in January, 1916, said:
1. The object of. this 1nemorandum is to give an account of the
manner in which the sea power of the British Empire has been
used during the present war for thP. purpose of intercepting Ger-
many's in1ports and exports.

I.-BELLIGERENT RIGHTS AT REA

2. The means by which a belligerent who possesses a fleet has,

up to the thne of the present war, interfered with the commerce
of his enemy are three in nun1ber: ·
( i) The capture of contraband of war on neutral ships.
( U) 'rhe capture of enemy property at sea.
(iii) A blockade by 'vhich all access to the coast of the enemy
is cut off.
3. The second of these powers has been cut down since the
Napoleonic wars by the Declaration of Paris of 1856, under which
ene1ny goods on a neutral ship, with the exception of contraband
 BELLIGERENT RIGHTS AT SEA 57
of ,var, were exemp~ed from capture. Enemy goods which had
been loaded on British or allied ships before the present war were
seized in large quantities immediately after its outbreak; but for
obvious reasons such shiptnents ceased, for all practical purposes,
after August 4, 1914, and this particular method of injuring the
enemy may, therefore, for the moment be disregarded.
No blockade of Germany was declared uptil March, 1915, and,
therefore, up to that date we had to rely exclusively on the right
to capture contraband.

H.-CONTRABAND

4. By the established classification goods are divided into three

classes:
(a,) Goods primarily used for 'var-like purposes .
. (b) Goods which may be equally used for either war-like or
peaceful purposes.
(c) Goods which are -~xclusively used for peaceful purposes.
5. Under the law of contraband, goods in the first class may
be seized if they can be proved to be going to the enemy country ;
goods in the second class may be seized if they can be proved to
be going to the enetny government or its armed forces ; goods in
the third class tnust be allowed to pass free. As to the articles
which fall within any particular one of these classes, there has
been no general agreement in the past, and the attempts of bellig-
erents to enlarge the first class at the expense of the second and
the second at the expense of the third have led to considerable
friction with neutrals.
6. Under the rules of prize la,v, as laid down and administered
by Lord Stowell, goods were not regarded as destined for an
enemy country unless they 'vere to be discharged in a port in
that country; but the American prize courts in the Civil War
found themselves compelled by the then existing conditions of
commerce to apply and develop the doctrine of continuous voy-
age, under which goods which could be proved to be ultimately
intended for an enemy country were not exempted from seizure
ou the ground that they were first to be discharged in an inter-
vening neutral port. This doctrine, although hotly contested by
many publicists, had never been challenged by the British Gov-
ernment, and was more or less recognized as having become part
of international law.
7. When the present war broke out it was thought convenient,
in order, among other things, to secure uniformity of procedure
among all the allied forces, to declare the principles of inter-
national law which the allied Governments regarded as applicable
69574-31--5
58 LONDON NAVAL TREATY, AUT. 22, AND SUB::\IARINES

to contraband and other n1atters. Accordingly, by the Orders

in Council of August 20 and October 22, 1914, and the correspond-
ing French decrees, the rules set forth in the Declaration of Lon-
don were adopted by the French and British GoYernments with
certain n1odifications. As to contraband, the lists of contraband
nnd free goods in the declaration were rejected, and the doctrine
of C'ontinuom; voyage was applied not only to absolute contraband,
•
as the declaration already provided, but also to conditional con-
traband, if such goods were consigned to order, or if the papers did
not show the consignee of the goods, or if they showed a con-
signee in enemy terri ton'.
8. The situation as regards Gertnan trade was as follows:
Direct trade to German ports (save across the Baltic) had al-
n1ost entirely ceased, and practically no ships \Yere met with
bound to Gern1an ports. The supplies that Germany desired to
import from overseas were directed to neutral vorts in s·candi-
wtvia, Holland, or (at first) Italy, and every effort was n1ade
to disguise their real destination. The power which we had to
deal with this situation in the circumstances then existing was-
( i) "\Ve had the right to seize articles of absolute contraband if it
could be proved that they were destined for the enetny country,
although they were to be discharged in a neutral port.
( ii) 'Ye had the right to seize articles of conditional contraband
if it could be proYed that they were destined for the enemy Gov-
ernment or its armed forces, in the cases specified above, although
they were to be discharged in a neutral port.
9. On the other hand, there was no po'\\·er to seize articles of
conditional contra band if they could not be sho'\\·n to be destined
for the enen1y Governtnent or its arn1ed forces, or noncontraband
articles, even if they were on their way to a port in Gern1any.
and there was no power to sto11 German exports.
10. That was the situation until the actions of the Gern1an
Government led to the ado11tion of 1nore extended powers of inter-
cepting Gennan conunerce in l\Iarch, 1915. The allied Govern-
nlents then decided to S>top all go<Hls which could be proved to be
going to or coming fr01n Gennany. The ~tate of things }HodnC'e<l
is in effect a blockade, adapted to the condition of n1odern war
and comn1erce, the only difference in operntion being that the
goods seized are not necessaril;\' confiscated. In the:-:e cirC'um-
stances it will be convenient, iu considering the treatinent of
Gernmn hnports and exports, to omit any further reference to
the nature of the conunodities in que&tion as, once their destina-
tion or origin is established, the rwwer to sto11 then1 is cotnplete.
Our contraband rights, however, r(\main unaffected, though the;\·,
too, depend on the ability to prove enenl~' destination. ( State1nent
 REPRISALS 59
of the :\Ieasures Adopted to Intercept the SealJorne Commerce of
Gennany. British Parliainentary Papers, l\Iisc., X o. 2 ( 1916),
lJ 1.)

Restriction of conunerce by rezn"isals.-''Thiie reprisals

are ain1ed against an enen1y, the belligerents in the 'V orld
'V ar did not hesitate to resort to measures 'v hich directly
affected neutrals. So long as neutrals tolerated such
action or 1nerely 'vrote notes 'vhich could be ans,vered
so1ne\vhat at leisure by the belligerents, reprisals nat-
urally extended so as to interfere more and n1ore 'vith
'vhat 'vere previously regarded as neutral rights.
rrhe British Order in Council of l\1arch 11, 1915, pur-
porting to be replying to the German proclamation de-
claring the 'va ters surrounding the United l{ingdom a
military area, in reprisal stated that His Majesty had
" therefore decided to adopt further n1easures to pre-
vent co1nmodities of any kind fron1 reaching or leaving
Germany." This Order in Council 'vas published in
the London Gazette of March 15, 1915, and transmitted
in a letter of the sa1ne date by the A1nerican ambassador
to the Secretary of State. In a note of l\farch 30 the
An1erican Secretary of State mentions this Order in
Council as containing "matters of grave importance to
neutral nations. They appear to menace their rights to
trade and intercourse not only \vith belligerents but also
w·ith one another." * * *
The Order in Council of the 15th of :March would constitute.
were its proyisions to be actually carried into effect as they stand,
a practical assertion of unlin1ited belligerent rights over neutral
commerce within the whole European area, and an aln1ost un-
qualified denial of the sovereign rights of the nations now at
peace.
This Government takes it for granted that there can be no
question what those rights are. A nation's sovereignty over its
own ships and citizens under its own flag on the high seas in
time of peace is, of course, unlhnited; and that soyereiguty suffers
no dhninution in tilne of war, except in so far as the practice
and consent of civilized nations has lilnited it by the recognition
of certain now clearly determined rights, which it is conceded
1nay be exercised by nations which are at war.
60 LONDON NAVAL THEATY, ART. 22, AND SUBMARINES

A belligerent nation has been conceded the right of visit and

search, and the right of capture and conden1nation, if upon ex-
anlination a neutral vessel is found to be engaged in unneutral
sE-rvice or to be carrying contraband of war intended for the
enemy's govenunent or armed forces. It has been conceded the
right to establish and maintain a blockade of an enemy's ports
and coasts and to capture and condemn any vessel taken in
trying to break the blockade. It is even conceded the right to
detain and take to its o'\vn ports for judicial examination all
vessels which it suspects for substantial reasons to be engaged
in unneutral or contraband service and to condemn them if the
suspicion is sustained. But such rights, long clearly defined
both in doctrine and practice, have hitherto been held to be the·
only pennissible exceptions to the principle of universal equality
of sovereignty on the high seri.s as between belligerents and
nations not engaged in war.
It is confidently assumed that His 1\:Iajesty's Government will
not deny that it is a rule sanctioned by general practice that,
even though a blockade should exist and the doctrine of contra-
band as to unblockaded territory be rigidly enforced, innocent
shipments may be freely transported to and frorn the United
States through neutral countries to belligerent territory without
being subject to the penalties of contraband traffic or breach of
blockade, much less to detention, requisition, or confiscation.
Moreover the rules of the Declaration of Paris of 1856-among
them that free ships make free goods-'\vill hardly at this day
be disputed by the signatories of that solemn agreement. (9 Arner.
Jour. Int. La·w, Spec. Sup., July, 1915, p. 117.)
Protests :from neutral sources in regard to the opera-
tion o:£ the exceptional 1neasures provided :for in the
British retaliatory order led to an investigation and
special report by a co1n1nittee. This report 'vas ptesented
to Parliament in February, 1917. The committee as a
result of its investigation says in part:
Neutral vessels are brought into British ports under the order
in council of 1\Iarch 11, 1915, in order that the belligerent may
be satisfied as to the character, ownership, destination, or origin
of the cargo which they carry. 'Vhether any delay caused by the
methods employed in dealing with ships and cargoes so brought in
is or is not a.voidable must be determined by reference to the delay
\Vhich is inseparable from the effective exercise of this right.
That its exercise must involve some delay is plain. This would
be true even if the belligerent were to rely exclusively on the
 REPRISALS 61
older practice of search at sea. But we are satisfied upon the
eyidence that the maintenance of this practice is neither possible,
in Yiew of the increased size of ships, nor, in view of the conduct
of enemy submarines, desirable in the interests of neutral lives and
property.
Not only so, but to exercise the right solely by means of the
older practice would be tantamount to a complete abandonment
of. the right itself. The documents carried on a ship no longer
furnish conclusive, or necessarily even presumptive, evidence of
the true character, ownership, or destination of the cargo. The
great increase of facilities by which goods can be circuitously
conveyed to or from an enemy country, and the existence of other
and speedier means of communication between traders than the
ship carrying the goods, afford almost infinite opportunity for
concealment. The documents which would disclose the true
uature of the transaction, the contracts, correspondence, and
cables may pass independently. Unless, therefore, the neutral is
provided "•ith better credentials than the documents carried by
the ship, the evidence of the real facts has to be sought for by the
belligerent from sources outside the ship.
Some alteration, then, not of principle but of practice, became
necessary, and the n1achinery for carrying into effect the order in
council of 1\Iarch 11, 1915, is the modern equiyalent of the older
methods. In order to determine whether the delars resulting
from the modern methods can be diminished or aYoided, we haYe
considered it our duty to inYestigate, point by point, the whole
of this machinery and have exa1nined witnesses from all the
departments concerned.
2. METHODS EMPLOYED IN DEALING WITH SHIPS AND CARGOES UNDER
THE! ORDER IN COUNCIL, MAR.CH 11, 191;:;

(1) Visit at sea.-All ships intercepted by the patrolling squad-

rons are Yisited, the time occupied in so doing being about three
hours, except in hea\y weather, when delay occurs till the weather
moderates sufficiently to permit of boarding. On a decision being
taken to send the ship in, she is dispatched under au armed guard
to the most convenient port, called a port of detention; in the case
of ships going "north-about," for the most part to Kirkwall or
Lerwick, but sometimes, if westward bound, to Stornoway, or Yery
occasionally to Ardrossan. Ships going "south-about" are de-
tained in the Downs or sent into Falmouth or Dartlnouth.
(2) Visit and search at the port of detention.-On arrival at a
port of detention the ship is visited by the customs officers, who
examine the Inanifest, bills of lading, and any other releYant
documents which she may be carrying, and prepare a detailed
()2 LONDOX XAV.\L TREATY, ART. 22, AND SUBMARINES

analy8i~ of her whole cargo. Ships detained in the Downs are

visited ancl reported upon in the same way by the naval authori-
ties. (British Parlhunentary Papers, l\lisc .. No. 6 (1917), p. 2.)
The con11nittee seemed to find that the objections of
neutrals proceeded fron1 the nature of the order in
council of ~Iarch 11, 1915~ rather "than to the Ina-
chinery by which those provisions 'Yere enforced."
/n.'dJ•u,ct?:ons of the Unite~ States, 1917.-The Instruc-
tions for the N ayy of the United States Governing ~fari­
tiine ,,..,.. arfare~ issued in 1917, ,yere in accord 'Yith the
generally understood requiren1ents in regard to visit and
search. So1ne of these requirements w·ere based upon
treaty stipulations:
44. Subject t9 any special treaty proviSions, the following pro-
cedure i~ clirected: Before sum1noning a vessel to lie to a ship of
'var n1ust hoist her own national flag. The sununons shall be
made by firing a blank charge (coup de se1nonce), by other inter-
rJational signal, or by both. The sumrnoned vessel, if a neutral,
is bound to stop and lie to, and she should also display her colors ;
if an enemy vessel, she is not so bound, and 1nay legally even
resist by force, but she thereby assumes all risks of resulting
damage.
45. If the sumn1oned vessel resists or takes to flight, she may
be pursued and brought to by forcible measures, if necessary.
46. 'Vhen the sumn1oned vessel has brought to, the ship of
war shall send a boat with an officer to conduct the visit and
search. If practicable, a second officer should accompany the
officer charged with the examination. There 1nay be arms in the
boat, but the boat's crew shall not have an~r on their persons.
The officer (or officers), wearing side arms, n1ay be accon1paniecl
on board by not n1ore than two unanned men of the boat's crew.
47. The boarding officer shall first exan1ine the ship's papers in
order to ascertain her nationality, ports of departure and destina-
tion, character of cargo, and other facts deemed essential. If
the papers furnish conclusive evidence of the innocent character
of ve~sel, cargo, and voyage, the vessel shall be released ; if they
furnish probable cau~e for capture, she shall be seized and sent
in for adjuclication (p. 21).
Changes in practice, 1914-1918.-.r\.Inong the 1nany
changes in practice during the \Vorld ''rar 'Yas that of
the introduction of extrinsic evidence in regard to lia-
 DETENTION 63

bility of Yessels to ca ptnre. In early cases it 'vas under-

stood that in a prize court the " property of the neutral
clain1ant shall not Le conde1nned except on evidence conl-
ing out of his o'vn n1outh or arising out of the clear
circumstances of the transaction. If this rule is unsatis-
factory to captors, it is nevertheless the rule 'vhich the
la ''" prescribes.'~ (Sir ''Tillian1 Scott, in The H aabet
( 1805), G C. Robinson, Achniralty Reports~ p. 54.)
'The British Prize Court Rules under \Yhich these prize
courts later acted during the \Vorld 'r
ar per1nitted the
introduction of evidence from most diYerse sources, son1e
of it being infer(:lnt ial, frotn pre- \Ynr ancl postw·ar trade
statistics. .A. note of the Depnrtiuent of State of the
United States to the British Governinent, October 21,
1915, stated:
The result is, as pointed out above, that innocent vessels or
cargoes are now seized and detained on mere suspicion, while
efforts are n1ade to obtain evidence fr01n extraneous sources to
justify the detention and the cOinmenceinent of prize proceedings,
The effect of this new procedure is to subject traders to risk of
loss, delar. and expense so great and so burdensome as practically
to <lP~troy Inuch of the export trade of the United States to neutral
countries of Europe.
(1 0) In onler to 11lace the responsibility for the delays of
Ye~scls aud targoes U[10n ..._'-\Jnerican claimants. the Order in Coun-
cil of October 2f), 1914, as 110inted out in the British note of Feb-
ruary 10, seeks to place the burden of proof as to the noncontra-
l.Jan<l character of the goods upon the claimant in cases where the
goods are conf'igned " to order " or the consignee is not named or
the consignee is within enemy territory. 'Vithout acln1itting that
the onus probandi can rightfully be made to rest upon the clahn-
ant in these cases, it is sufficient for the purposes of this note to
point out that the three classes of cases indicated in the Order
in Council of October 2H apply to only a few of the many seizures
or detentions which have actually been made by British authori-
ties.
(11) The British contention that in the American Civil 'Var
the captor was allowed to establish enemy destination by " all
the evidence at his (lisposal," citing the Berm,uda case (3 Wallace,
515), is not borne out by the facts of that case. The case of the
BcrrnuAa1 was one of "further proof," a proceeding not to deter-
Inine whether the vessel should be detained and placed in a
64 LONDON NAVAL TREATY, ART. 22, AND SUBl\iARINES

prize court, but whether the vessel, having been placed in prize
court, should be restored or condemned. The same ruling was
made in the case of the Sir lVilliant Peel (5 'Vallace, 517). These
cases, therefore, can not be properly cited as supporting the
course of a British captor in taking a vessel into port, there to
obtain extrinsic evidence to justify him in detaining the vessel
for prize proceedings. (10 An1er. Jour. Int. law, 1916 Sup. p. 77.)
This naturally led to an atten1pt to shift the burden of
proof of innocence to the ship seized rather than to place
upon the captor the burden of proof of guilt of the ves-
sel captured. This and other changes, son1e of which
might be reasonable, were made possible in 1914-1918
because of the 'veakness of some neutrals and the con1-
plaisance of others.
Defense and offense.-From the general nature of in-
structions given or supposed to have been given, it would
seem that armed 1nerchant vessels of belligerents were
at liberty to fire upon enemy submarines 'vithout waiting
:for any firing by the submarine. The right of resistance
has long been admitted and n1any argue that the most
effective resistance is "a defensive attack." The differ-
ence between "a defensive attack " and " an offensive at-
tack" seems to be in the intention of the officer ordering
the attack. Intention is not easy to prove, even in time
of peace, and in time of 'var may be even 1nore difficult.
Article 22 of the London naval treaty requires subma-
rines to conform to the rules of international law to
which surface vessels o£ 'var are subject in their action
'vith regard to merchant ships as to sinking or rendering
the merchant vessel incapable of navigation. The mer-
chant vessel may be subject to the use o£ force in case of
persistent refusal to stop after summons or of active
resistance to visit and search. The pointing of a gun
on a vessel flying a belligerent flag at a vessel o£ war o£
an enemy would under the ordinary regulations not
1nerely constitute active resistance but constructive at-
tack which it would be the duty o£ the commander o£ the
submarine to anticipate by his own ·fire.
 LONDON" XAYAL TREATY, ART. 22, AND SUBMARINES 65
SOLUTION

(a) Under the conditions the action of submarine No.

5 in su1nmoning the Star to lie to is legal and submarine
No. 5 may, in case of persistent refusal, use force as
'vould a surface vessel. The action of submarine No. 6
in sinking the Star is illegal because not in accord with
article 22 of the London naval treaty.
(b) The subn1arine of state X would be justified in
firing upon an enemy merchant vessel whose decks have
been strengthened for mounting 6-inch guns when the
guns are mounted and pointed at the submarine.
(c) A submarine may order a merchant. vessel to ac-
company it to port under penalty of being sunk.